Rand on IP, Owning “Values”, and “Rearrangement Rights”

byStephan KinsellaonNovember 16, 2009

In Jeff Tucker’s superb article If You Believe in IP, How Do You Teach Others?, he notes Rand’s increasing focus on exalting the creator and elevating “intellectual rights” to such a height that they totally trump real rights. This is no exaggeration. As I noted in Against Intellectual Property, Rand actually, incredibly said that “patents are the heart and core of property rights.” See also my post Inventors are Like Unto …. GODS….., noting Objectivist IP attorney Murray Franck approvingly repeating this quote: “intellectual property is after all the only absolute possession in the world.”

Property rights are required because man needs to support his life by the use of his reason. The primary task in this regard is to create values that satisfy human needs, rather than relying on what we find in nature, as animals do. . . . [T]he essential basis of property rights lies in the phenomenon of creating value. . . . Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value. As a general rule, I would say that two conditions are required in order to appropriate things in nature and make them one’s property: (1) one must put them to some productive use, and (2) that productive use must require exclusive control over them, i.e., the right to exclude others. . . . Condition (2) holds only when the resource is scarce. But for things that one has created, such as a new product, one’s act of creation is the source of the right, regardless of scarcity. [emphasis added]

Thus, Objectivists will talk about man creating values. For them “a value” is a thing that exists; it’s what you “create”. For the Austrian and Austro-libertarian, you don’t talk about “a value” as if it’s an existing thing that you create. I don’t make a value. For us, it’s more of a verb: we value things as ends or as means to ends. We can make something more valuable by transforming it, but we do not create new property when we do this. As discussed in Intellectual Property and Libertarianism, creation is an important means of increasing wealth. As Hoppe has observed,

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways. [Hans-Hermann Hoppe, “Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order,”Review of Austrian Economics 4 (1990): pp. 55-87, p. 60. Emphasis added.]

While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

By viewing “values” as things that we create, Objectivists then think there should be property rights in values. They are things, after all, right? But this is a fundamental mistake. As I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, a common mistaken belief is that one has a property right in the value, as opposed to the physical integrity of, one’s property. For elaboration, see pp. 139-141 of Hoppe’s A Theory of Socialism and Capitalism; also see my comments re same to Patents and Utilitarian Thinking. This assumption sneaks into or lies at the basis of many fallacious notions of property rights, such as the idea that there is a right to a reputation because it can have value. It ties in with the (especially Randian) notion of “creation” as the source of rights, and the confusing admixture of the “labor” idea, when we talk about using our labor to “create” things of “value” (like reputations, inventions, works of art). As Hoppe notes in The Economics and Ethics of Private Property:

According to this understanding of private property, property ownership means the exclusive control of a particular person over specific physical objects and spaces. Conversely, property rights invasion means the uninvited physical damage or diminution of things and territories owned by other persons. In contrast, a widely held view holds that the damage or diminution of the value (or price) of someone’s property also constitutes a punishable offense.As far as the (in)compatibility of both positions is concerned, it is easy to recognize that nearly every action of an individual can alter the value (price) of someone else’s property. For example, when person A enters the labor or the marriage market, this may change the value of B in these markets. And when A changes his relative valuations of beer and bread, or if A himself decides to become a brewer or baker, this changes the value of the property of other brewers and bakers. According to the view that value damage constitutes a rights violation, A would be committing a punishable offense vis-à-vis brewers or bakers. If A is guilty, then B and the brewers and bakers must have the right to defend themselves against A’s actions, and their defensive actions can only consist of physical invasions of A and his property. B must be permitted to physically prohibit A from entering the labor or marriage market; the brewers and bakers must be permitted to physically prevent A from spending his money as he sees fit. However, in this case the physical damage or diminution of the property of others cannot be viewed as a punishable offense. Since physical invasion and diminution are defensive actions, they are legitimate. Conversely, if physical damage and diminution constitute a rights violation, then B or the brewers and bakers do not have the right to defend themselves against A’s actions, for his actions – his entering of the labor and marriage market, his altered evaluation of beer and bread, or his opening of a brewery or bakery – do not affect B’s bodily integrity or the physical integrity of the property of brewers or bakers. If they physically defend themselves nonetheless, then the right to defense would lie with A. In that case, however, it can not be regarded as a punishable offense if one alters the value of other people’s property. A third possibility does not exist.

Both ideas of property rights are not only incompatible, however. The alternative view – that one could be the owner of the value or price of scarce goods – is indefensible. While a person has control over whether or not his actions will change the physical properties of another’s property, he has no control over whether or not his actions affect the value (or price) of another’s property. This is determined by other individuals and their evaluations. Consequently, it would be impossible to know in advance whether or not one’s planned actions were legitimate. The entire population would have to be interrogated to assure that one’s actions would not damage the value of someone else’s property, and one could not begin to act until a universal consensus had been reached. Mankind would die out long before this assumption could ever be fulfilled.

Moreover, the assertion that one has a property right in the value of things involves a contradiction, for in order to claim this proposition to be valid – universally agreeable – it would have to be assumed that it is permissible to act before agreement is reached. Otherwise, it would be impossible to ever propose anything However, if one is permitted to assert a proposition – and no one could deny this without running into contradictions – then this is only possible because physical property borders exist, i.e., borders which everyone can recognize and ascertain independently and in complete ignorance of others’ subjective valuations.

Rand did have insights that militated against property rights in “values”; as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation”does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property. If she had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people’s property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights–the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, “Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being—particularly, in regard to serving or hindering man’s goals.” (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

I think a similar mistake is made by Tibor Machan. Rand slips into thinking of values as ownable things because she thinks of values as created things, rather than thinking of it as a verb: people value things (and demonstrate this preference or valuing in action). I’m sure Machan would disagree with my way or framing his argument, but his argument, to me, seems to say that if you can have a concept for some”thing”, or a name or word for “it,” then it’s an ontological “type of thing,” and after all, if you create this thing, why shouldn’t you be “its” owner? The problem with this is it does not first ask: what is an ownable type of thing? Surely you can’t just say that any type of thing you can conceptualize or come up with names for is therefore ownable. I don’t own my wife just because I say she is “mine”; language does not determine normative reality. It is just a useful tool. If I use the word “poem” to describe a pattern of words that I wrote, and if I refer to the poem as an “it” and say things like “I created it” to mean that I moved my pencil in such and such a way on paper resulting in a certain configuration of letters, just because we arrange our concepts and words in this manner does not mean the poem is a “thing” that can be owned. In my view, all talk about “ontology” is just a fancy way of dressing up the fact that we understand the world conceptually, and use words of a language to denote those concepts. It does not imply that any thing I can happen to come up with a word or concept for is ownable. I have a concept of running; who owns “running”? There is math; who owns math? It is “a truth” that WWII began in a certain year. Who owns that fact? The point is that saying that you own the poem because you create it presupposes we are asking who the poem’s owner is. If that’s the question, then sure, the creator is a natural answer. But you only get to this question if we need to find an owner for the poem; if it does or can have an owner; if poems are ownable types of things. In my view, only scarce resources are ownable things. Something does not qualify for this status just because of the words we use–and saying something is “an ontological type of thing” doesn’t change this. (For more on this, see my comments in the thread of the post Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to “Trademark and Fraud”; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.)

FYI, a previous version of this paper was discussed on the Mises blog in the comments of this thread, New Working Paper: Machan on IP (http://blog.mises.org/archives/005960.asp), and my comments in Trademark and Fraud (http://blog.mises.org/archives/007409.asp), where I wrote:

Well, let me say that in a way I agree–one source of disagreement lies in differences over whether rights come from scarcity, or from “creation” (Rand’s “man’s needs” type of argument).

I’ve tried to show that it’s a mistake to think of creation as a source of ownership of property. Often it’s said that you can find/appropriate something, create it, or buy/receive it from a previous owner. But “creation” is not really a third way of acquiring ownership. In fact, it’s neither necessary nor sufficient. Appropriation of unowned goods, and contractual acquisition of goods from previous owners, are the only ways to acquire property rights in things. I discuss this in detail in the section “Creation vs. Scarcity” et pass. of Against Intellectual Property. Also, note that if you say that we have property rights to “things we create,” you indeed open the door to a horrible pandora’s box of things that people have monopolistic rights to, which would entangle and ensnare all use of scarce resources, thus leading to the entire human race dying out. See, e.g., the examples of Galambos and Schulman, noted in my article, who advocate protection of a very broad range of mentally “created” patterns, ideas, “logos,” what have you.

Tibor Machan has alluded to this in some of his writings, where he basically wants to say that there are all kinds of “things” that “exist”–poems, trucks, etc.–and since “The tangible-intangible distinction is not a good one for what can and cannot be owned”, then we need to focus on “intentionality”–things we intentionally create or produce, whether they be “tangible” or “intangible”–indeed, intangible things like poems, computer games/programs, novels, songs, arrangements, etc. are more completely “intentional” and “created” than are tangible goods. I.e., Machan’s theory seems to be that any “ontological type of thing” that we can identify, and that was intentionally created or produced by man, is owned by man. For more on this, see: New Working Paper: Machan on IP; also see the criticism and discussion in the comments (e.g., those of Carl Johan Petrus Ridenfeldt at November 30, 2006 4:59 PM); see also Owning Thoughts and Labor and related comment thread; and the comments in The Copyright/Baseball Analogy. I think if you review the criticisms of Machan’s view here (and my discussion of “Creation v. Scarcity” in my longer paper noted above), you’ll begin to see the magnitude of problems that accompany looking at property in this way.

I think Machan also makes the mistake of implicitly assuming that that any “thing” you can conceptualize or name “exists” and “thus” can be owned. Such as a novel, or poem, or invention. And if these things are ownable, naturally, the person with the best connection to or claim to this thing is its creator. As Machan notes,

the status of something as private property appears to hinge on its being in significant measure an intentional objectâ€”its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.

(This is somewhat reminiscent of what Rand did when she actually elevated patents over mere property rights in tangible goods, when she wrote that â€œpatents are the heart and core of property rights.â€ See. p. 18 of my Against Intellectual Property article linked above.)

The problem here is it just assumes any “thing” you can identify conceptually may be owned. One problem with this is that it seems to make reality depend on the way we name or conceptually identify things. If I call or understand your output as a “novel,” then the “novel” is the unit. But just because this suffices for conceptual understanding of the world does not mean there is some “ontological” class of entities called “novels” that may be owned. In fact our concepts are use to refer to many phenomenon in or aspects of reality–truth, love, the-fact-that-I-woke up this morning, the age of the earth, my favorite drink. Are these things ownable just because they are “things” that can be conceptually identified? I don’t think so.

When you ask what things are ownable, before asking who the owner is, you realize the criteria is bound up with the purpose of property rights, which is to assign owners to avoid conflict; that is, they pertain to the types of things over which there can be conflict–that is, to rivalrous (scarce) resources. Clearly not to facts or memories or recipes or patterns or information. So you never get to the question of who owns a poem. It is simply not part of the class of ownable things. Call it a thing if you like; say it “exists”; fine by me. But it’s not an ownable thing.

If you restrict the ownership inquiry to scarce resources, you see the question of “creation” never really comes up, strictly speaking: as I have noted before, the focus on “creation” as an independent source of ownership is confusing and flawed. Actually, it is first use that is the key (as elaborated in my article How We Come To Own Ourselves). This is sufficient to allocate title to any particular scarce resource in question (the body is a special case). Creation, it turns out, is neither necessary nor sufficient: for example, if I am the first to homestead an apple, I own it even though I didn’t create the apple (yeah, you can torture language to try to say you “created” it in a sense since your creative efforts or “labor” were needed to recognize the opportunity etc., but let’s face it: you didn’t create the apple). So creation is not necessary. And if you create a statue in someone else’s granite slab, you don’t own it–so creation is insufficient. By contrast, if you create a statue in your own granite, you own the resulting statue, but not because you created it–because you already owned the granite, but merely changed its form.

Randians justify rights based on man’s “need” to be “productive” etc. I find this a very flawed and non-rigorous approach. It is what leads them to focus on creation as the touchstone of ownership; and this is why they are so eager to grant rights in IP–because yes, these things are “created” moreso than unowned scarce resources in the wild that are found and homesteaded.

Also, see my Powerpoint presentation at the Austrian Scholars Conference 2008 for some brief criticism of some Objectivist views on “creation” as the source of property rights, esp. in the context of intellecutal property (slides 91-97 in particular).

***

John Armaos:
“And what would be accomplished from the abandonment of legal protections for intellectual property rights?

“It would destroy the following industries that produce billions of dollars and millions of jobs.

“Music, movies, television, books, pharmaceuticals, etc.”

I realize this is a common belief, but I do not believe it is true. Pharmaceuticals are hampered by the FDA. If you removed these shackles, and high state taxes, the “need” for them to have a patent monopoly (also grated by the state) would be much lower, no? Why have the state grant a monopoly to make up for other penalties imposed by other state actions (taxes, FDA regulation, etc.)?

“What is the incentive to create if someone can just mooch off of your ideas?”

I thought the Randian argument was a moral, principled one, not utilitarian. Anyway, using words like “mooch” and the possessive “your” (as if it’s similar to ownership) is question-begging, is it not?

Shouldn’t the case for patent rights be principled? But who can come up with a principled argument for a 17-year patent monopoly administered by a state-run bureaucracy?

***

Tibor wrote: “As far as IP is concerned, my point may be summed up as that whenever someone creates something of value, one owns it. Even some values not created by one but constituting one (say, one’s life or liberty) belong to one so others, in order to gain from it, must obtain one’s consent. If one creates a novel, it belongs to one; same with a poem or song or game. How one will protect what one owns is a subsequent problem–just as it is with the right to one’s life or liberty. The protection of these is a problem that arises only once the right is acknowledged to exist. It is furthermore clearly an intervention in one’s life to have others obtain one’s creations, products without one’s consent, be these a home, a car, a computer, a song, a design for some device, etc. Such taking would be no less theft that any other kind of taking to which the owner hasn’t agreed.”

Tibor, Re your latter comment about “theft”–under the patent system as it exists now, there is NO requirement to show that you “took” anything from the creator of a given patented invention. Even if someone independently invents the same thing; even if they invented it FIRST, this is not a defense. Now, pro-IP libertarians who make arguments like yours, it seems to me, will have difficulty squaring such a system with their basis for IP (though Rand tried to). So I assume you would object to independent or prior inventors being restricted by someone else’s patent for the same invention, so long as the person didn’t learn about (“steal”) it from the patentee, correct?

Now I think this is thoroughly reasonable. However, such a position, in my view, would undermine the patent sytsem (which I think would be a good thing). In any event, if you claim to advocate patent-like rights in inventions, yet agree with the unjustness of lack of a prior use/independent invention defense, then I am really not sure what system you advocate. It’s not clear at all. So I am not sure what to agree, or disagree, with, or what criticisms to make. If every particular criticism I make is met with agreement by pro-IP libertarians — “Oh, of course, I’m not in favor of THAT” — then I am not sure what else to say.

As for your coment, “whenever someone creates something of value, one owns it,” this is where I disagree, because this statement is too sweeping, for several reasons. First, note that all rights are considered enforceable–which means, in terms of physical force. If I sue you to stop you from using “my” invention, what that means is if I win, I can use physical force, against your physical property–e.g., an injunction preventing you from using your own physical property in a certain way, or a damages award giving me title to some of your money. So the dispute in this case is always about who can use, or own, a particular piece of physical property.

I think saying you have rights in any “thing” you create, that has “value,” is problematic for other reasons. First, it seems to me that what “things” are in this sense depends on our labels and concepts. And it leads to things like reputation rights, which of course most Objectivists agree with (Tibor, I can’t recall your view on this). I also do not think things “have” value; rather, some things are valued. I value my wife’s love for me and my child, but does that mean I “own” this love? does anyone own it? I think some things are not ownable at all; and this question is the one skipped over by taking about owning any created thing. The question has to be asked: is the thing of the type that can be owned? IF we keep in mind the fact that any dispute alwyas boils down to tangible things, and the propriety of physical force used to defend or use a given tangible thing, it seems clear that such tangible things are what are ownable; this is what the disputes are *about*.

IF you view it like this, then you see (in my view) that arguments “I created this pattern [invention, song, poem, whatever]” are merely arguments for control of a given tangible thing. If I argue that it is legitimate for me to use force against you, to stop you from using your own trees and logs to build a log cabin on your own land, “because” I “invented” the idea of building a log cabin to live in, then I am basically arguing that I really own (or partly own) your already-owned property (land, logs, body). I am arguing that my innovation gives me a better claim to your property. And that this innovation trumps your first-use (Lockean homesteading) of these things. IN other words, all IP claims undermine the idea of homesteading unowned natural resources. It means that the person who first appropriates an unowned resource is not its real owner: he is only its temporary, limited, conditional owner: he owns it fully only until some third party thinks of some way to use his own property. I think this is perverse and non-libertarian, impractical, unworkable, confused, etc. Not surprisingly, attempting to implement such a system–by empowering a state agency, no less–leads to manifestly unjust results.

***

Dwyer:

Here is Rand’s justification for rights:

“The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.” (“Man’s Rights”, VOS)

What’s flawed and non-rigorous about that?

Well… I am not sure what a “right to life” is, any more than a right to free speech. These it seems to me are derivative of your right to your body and things you homestead.

In your linked article on intellectual property, you say that property rights are applicable only to scarce resources, on the grounds that if resources aren’t scarce, then no conflicts can arise over their use, and that since intellectual property is not “scarce,” there should be no property rights governing its use. Does that mean that if I produce a non-scarce resource, I have no right to it and that you can rightfully deprive me of it without my consent?

This is the whole point: if it’s not scarce, no one can “deprive” you of it. As Jefferson said, it’s like someone lighting their candle from yours: you still have your flame. Likewise, if you think of a way to use your property–configure it into some design or apparatus; think of a way to use it (method)–for example, a way to modify your fuel injector to get better gas mileage, then if someone else uses the same technique on their own car, it does not deprive you of your technique.

You also say, “Ayn Rand mistakenly assumes that the first to file [instead of “first-to-invent”] has priority (and then she is at pains to defend such a system).” I think Rand would agree that ideally the first to invent should have priority. The problem is, how do you establish this priority legally?

Why do you assume Rand would agree with this? She never says this, and explicitly defends the first to file idea. Second, how would it be done? Like it’s done here. There is a system in place, called “interference,” to figure this out. Of course, it’s based on an arcane and arbitrary set of state-invented rules about “conception,” “due diligence,” and “reduction to practice,” but there are ways to do it. Rand was simply ignorant of it and in fact apparnetly did not even realize the US *has* a first to invent system alreayd.

“You do so through a filing process.”

Well, any patent system is a filing system, I suppose–but it can be either based on first to invent, or first to file. Moreoever, some here seem to think that the essence of patent infringement, is “stealing”–which means presumably copying and using someone else’s idea without their permission. Now a similar requirement is the case in copyright law–independent creation *is* a defense, there–but it’s not in patent law. So it seems that most pro-IP libertarians really favor some “copyright” based system even for protecting inventions–that is, patent would collapse into copyright (Rotbhard has a similar argument). But copyright is NOT a “filing” system. You get a copyright *automatically* in created works of authorship the moment they are “fixed” in a tangible medium of expression.

I really think most libertarian advocates of IP have no idea of the way the real system works, and of the bizarre system they are defending.

***

Arthur:

“You seem to have a notion that there is no such a thing as the fruits of one’s mental, physical or financial effort, and that they are not entitled to trade the fruits of that effort for a value.”

I believe you have a right to own (control) your body, and any ownable resources that you homestead from the state of nature or acquire from a previous owner. You can do whatever you want with your body or property, except invade the borders of others’ property–that is to say, except use others’ property without their consent.

With these rights, you can of course engage in trade with others to obtain things you want. You can “sell” your labor, which really means, entering into a contract with an “employer” who agrees to transfer title to some of their money, IF you perform certain services. Your ownership of your body is sufficient to allow you to do this. Just as your ownership of your property is sufficient to allow you to have “free speech” or “freedom of press” rights.

“Of course there is value created from taking granite and altering it into a statue. If you bought that statue, are you just paying for the value of a hunk of unsculpted granite?”

Technically, you don’t pay for value. You pay for certain rights to be transferred to you–namely,t he rights to control a particular hunk of matter. The *reason* you pay for it is you value the statue.

But so waht if you “create value” by altering granite into a statue? Either you own the granite that you are altering, or you do not. If you do, then you already owned the matter that you re-shape into something that “has more value.” If you don’t own the granite–say, it’s someone else’s; you are working under contract, or you stole the granite–then creating a statue does NOT give you ownership of it. Again: creation is neither necessary nor sufficient.

“Why do you think a sculpted piece of granite has a higher price than a hunk of unsculpted granite? Physical and mental effort was exerted in producing that finished product of a sculpted granite statue,”

Sure. There’s a reason people expend labor to transform their property. So what?

“something that the sculpter is entitled to the fruits of that mental and physical exertion”

I don’t know what this means. What “entitlement” is this exactly, other than the right to sell things you’ve transformed and improved?

***

Steve: “Answer: taxes and regulations are irrelevant to this discussion (unless you want to admit into the fellowship of the immoral and perverted). I’m not a patent attorney, however it appears to me that an individual or group of individuals file for a patent or copyright for the protection of their creation. The state is not granting them a monopoly. The state is recognizing their right to first use and benefit. If the state were blind to the rights of creators then there would be no use in creating. And certainly no use for a state.”

I agree with your last sentence.

The state is of course blind to true individual rights, is it not? It is an enemy of rights. Who can deny this?

***

Ed Thompson: “Unowned scarce resources in the wild aren’t homesteaded by being “found.” If that were true, then American Indians (Native Americans) would own America outright. In order to homestead something, from the Objectivist point of view, you have got to mix your labor with it for a productive purpose. The purpose needn’t be utilitarian (whatever is “supposed” to be good for many if not most folks), but it does need to be productive. Just like man needs to be productive — a natural need that won’t ever go away.”

“Stephan, could you produce a logical syllogism justifying man’s rights?”

I’ve done my best in the articles cited, and others they link to. In my view, rights are justified by showing that the denial of rights is incompatible with the pro-peace, pro-civilization norms necessarily presupposed by any participants in discourse about this issue. This technique is similar to the way Rand argued (proving some “axioms” by showing that its denial is self-contradictory); and also her recognition that all rights are “hypothetical” since they depend on one choosing to live, which choice is itself pre-moral or a-moral. Likewise, if one does not choose to be civilized, no discussion is possible with him; Peikoff made a similar point in OPAR about how you discourse with someone determined to be irrational: you don’t. In like manner, we simply have to regard uncivilized, irrational, criminal people as outlaws, as not really human. And deal with them as a technical problem. We who care about justification realize we are justified in treating them this way b/c of the logic of the entire ethical enterprise.

***

Dennis Hardin:

“The problem here is it just assumes any “thing” you can identify conceptually may be owned. One problem with this is that it seems to make reality depend on the way we name or conceptually identify things. If I call or understand your output as a “novel,” then the “novel” is the unit. But just because this suffices for conceptual understanding of the world does not mean there is some “ontological” class of entities called “novels” that may be owned. In fact our concepts are use to refer to many phenomenon in or aspects of reality–truth, love, the-fact-that-I-woke up this morning, the age of the earth, my favorite drink. Are these things ownable just because they are “things” that can be conceptually identified? I don’t think so.”

Rand is very clear about the fact that an idea or concept as such cannot be legally protected until it has been given a specific physical form. It is this specific form which endows it with value because that had to be created, and property rights apply only to that material form—e.g. books, magazine articles, audiotapes, etc. This material form cannot be reproduced without permission and/or compensation.

I find this reasoning flawed for several reasons. First, as I’ve noted to others here, it assumes that patent is like copyright–that it goes to “copying” (reproducing) others’ inventions. It does not. That is not the patent systme. It has nothing to do with knowledge, access, learning, copying: the patent right is basically absolute. Independent invention, hell, even PRIOR invention, is NOT a defense! If you reject this part of the patent system, you basically reject the patent system, just as I do, since, as any mainstream patent advocate will tell you, the system would be utterly useless and collapse, if these were defenses. So you seem basically to be thinking of some copyright-based system (a system designed to protect original works of authorship, NOT practical inventions) would extend to inventions too. I have no idea what such a system would look like, and I don’t think any of its implicit advocates do either; i.e., they don’t know what they are talking about, quite literally; they are not clear on what they are advocating. They object to critics of IP; yet they agree with most or many of our concrete criticisms of IP. They do not seem clear on what they are in favor of, yet seem determined to be in favor of it anyway. IF any libertarian wants to set forth an actual vision of the IP system he is in favor of, it can be discussed.

“When you ask what things are ownable, before asking who the owner is, you realize the criteria is bound up with the purpose of property rights, which is to assign owners to avoid conflict; that is, they pertain to the types of things over which there can be conflict–that is, to rivalrous (scarce) resources. Clearly not to facts or memories or recipes or patterns or information. So you never get to the question of who owns a poem. It is simply not part of the class of ownable things. Call it a thing if you like; say it “exists”; fine by me. But it’s not an ownable thing.”

This is a typically libertarian approach to rights, implying that the only issues involved are purely practical and dropping the context of the moral basis of rights. In Objectivism, rights are conditions of existence required by man’s nature for his proper survival. Man survives through the use of his mind, and property rights amount to a legal codification of the connection between mental effort and material values. They assure that the material products of a man’s mental efforts will be his to dispose of as he see fits—to serve his life and needs. It is a kind of contract which the creator of a novel or article or poem or invention—all of which are very much “ownable”–makes with anyone who might use it to agree to compensate him for his efforts.

A kind of contract? If I think of a way to use my property, when did I enter into any contract with others, that lets me sue them if they use their property in a similar way–esp. if they independently think of this way too??

As for dropping the moral context: I want to remind you of Rand’s comment from Galt’s speech: “Whatever may be open to disagreement, there is one act of evil that may not, the act that no man may commit against others and no man may sanction or forgive. So long as men desire to live together, no man may initiate–do you hear me? No man may start–the use of physical force against others.”

Note how this presupposes the simplicity of, the self-evidence of, what aggression is, and why it’s wrong. This is what any civilized person does. This is what it means to be civilized. We are all civilized, who discuss these matters; we all take for granted the basic civilized norms.

Man must create the values his life requires, but it would be absurd to say that he can only own those things which are entirely of his own creation. The monetary compensation he receives for his material creations can then be used in exchange for goods created or produced by other men (e.g., food products which must be grown, farmed or manufactured).

I find the idea that we “create values” to be confused. We don’t create values. Valuing is a relationship–you value something, and you demonstrate this in action, as Mises noted (and as Rand recognized in her idea that value is something you ACT to gain and/or keep). We don’t create values; we create things, we create wealth; we transform things into more “valuable” (i.e,. more valued) things. Sure.

Your approach is purely utilitarian: rights are to be assigned in a way that best reduces conflict. The objective requirements of human life have nothing to do with it.

I don’t thinks is correct. Note Rand’s inquiry is based on the implicit ethical assumptions or presuppositions of those who have chosen to live. Likewise, my argument is based on the implicit ethical presuppositions of those who have chosen to be civilized–including in particular those who debate or inquire into these issues; those who engage in argumentative justification of norms in the first place. We are all libertarians in the political sense here–we share certain views in common. What are these views? I think we all share the idea that peace and cooperation, civilization, are *good*. We choose to be civilized, just as we choose to live. Why do we make this choice? Who can say. But the choice has some implications. Those of us with a decent grasp of economics realize 98% of libertarian political views, simply by applying basic econoomics, and some logical consistency, to our presupposed basic norms of peace and cooperation. We see that most of our fellow men go astray not b/c they want to be wicked, but b/c they are confused–their advocacy of government intervention and aggression is *inconsistent with* their stated pro-civilized norms, right? don’t we all here agree that our fellow men are mostly confused and inconsistent? So we try to point this out to them. We say, look, if you are really in favor of prosperity and peace, you can’t favor taxes or anti-discrimination laws, since these undermine peace and prosperity. Thati s all I”m doing; it’s what we all do.

NOte you do not make the same arguments to an aggressor–someone trying to club me over the head, say, or rape me: you shoot them, if you can.

“Unless we define rights from the objective moral perspective of the requirements of individual surivival, the all-powerful state will continue to grow and thrive, and libertarianism will have helped pave the way to tyranny.”

I’ll say thi: most Objectivists favor the state, at least a minimal state. Yet there is no minimal state in the world; and there never has been one. The ones that have been even close (and I would disagree taht the US ever was really close) all devolve into worse states, and tyranny of one type or another. So why Objectivists think a limited government is even *possible* is beyond me. In my view, it is advocacy of the state at all that helps pave the way for tyranny. Tyrants can’t get away with it but for consent of the populace. I don’t grant them my consent. Some Objectivists do, even if unwittingly.

***

Steve:

Stephan: ‘The state is of course blind to true individual rights, is it not? It is an enemy of rights. Who can deny this?’

I’ll deny it.

Now you sound like a libertarian.

Thanks.

The state is not necessarily the enemy of individual rights. Government, as far as I can tell, is a just an enforcer of rules. Because of mans need for social interaction, or mans desire to interact, there much be some objective and separate agent to provide protection.

Hatred and distrust of a government is fine. Hatred and distrust of government is irrational, in my opinion.

Well, hold on. Humor me. First, let’s say not all states are necessarily bad. Isn’t it enough that EVERY state in the world today is terrible? Do you disagree that this is the case? Do you agree that the US federal government, to take one state, is in the year 2008 an enemy of rights, or not? I think it is manifestly obvious that it is.

And let me ask you this. Would you agree there has never been a truly minimal/limited state, and certain never one that lasted, that didn’t devolve into a rights-violating, criminal organization? And if you do agree, then how can you say it’s irrational to distrust all states? Even if it is based on some flawed reason, is it really irrational? After all, it’s easy to make a prima facie case out–all states are tyrannical; they have always been; all experience indicates that this is the case. Why is it “irrational” to conclude from this that all states will always be corrupt and unjust? Isn’t a bit of an unfair overstatement to say this view is necessarily irrational?

***

[Robert: “Name ONE government that one can love and trust – NOT in theory, but in practice…”]

Teresa: “I’m sure there are lots of local governments who’ve earned that response, Robert.”

Such as…..?

And even if you find a local town, say, that somehow merits this response, this example is limited to a very small population, and also probably exceptional b/c many other functions of government are provided by higher levels–so that the local gov’t that “merits” respect, is not a complete state. The challenge is to find ANY (full, complete) state that deserves this respect and love.

***

Ted Keer:

“During the middle ages, if your neighbor invented a better plow, you could look over the hedge at him tilling his field and copy his design. There was nothing that he could do to prevent this except to try to plow only at night or simply not to use his invention. The idea of offering patents came about when political thinkers saw that a limited form of monopoly granted for a limited period and backed up by political force would benefit all parties. If you knew that by inventing a better plow you could apply to the king for a patent and get a fee from those who wanted to license your idea you could invest the time in plow-research confident in the notion that your hard work would be rewarded.

In the state of nature, the idea of patents is unthinkable. One either hides one’s secrets (like the formula for Coca Cola) or shares one’s recipes or simply doesn’t innovate. But if a state apparatus already exists, and the state can offer you a limited monopoly for a fee (you get royalties, the state gets taxes, the public gets the benefit of your invention, and free use of your idea after some period has elapsed) then all benefit and none is harmed.”

Well, this is the theory, but there is no proof to back it up. Even if you swallow the problematic utilitarian rationale of this idea (it is utilitarian: clearly, it’s not the case that *no one* is harmed–some people are harmed, badly; RIM had to pay $600M recently after extortion from NTP; so the argument is that on net, we are all better off), most studies conclude the patent system is a net drain on the economy, or are inconclusive. I’ve estimated that the system costs at least $31 billion a year in net losses.

Pro-IP people who deny this ought to tell us exactly what are teh costs, and benefits, of the system, so we can figure out the alleged net gain. They never do–they do not know. Yet they act as if they do. I find this to be dishonest.

***

Steve:

I agree that every state currently in existence is shameful. I’ll admit that the US government is disgraceful, but this was not always so.

It’s more than “shameful” or disgraceful–it’s criminal. Do I sense a reluctance here to call a spade a spade. From an Objectivist? Say it ain’t so! 🙂

Thinking that the state must become corrupt and unjust is irrational. Since some institution is necessary for the protection of rights, it does not follow that this institution must become unjust. If you disagree and think that it is unessential to have a government at all you had better put that in a new thread.

I disagree. The state by definition is corrupt and unjust, since by its nature it either taxes, or outlaws competition. Either of these actions is corrupt/unjust. I don’t see that “an entity that taxes or outlaws competition” is the institution necessary to protect rights. In fact, by its nature, it infringes rights.

Capitalism requires a government because it requires freedom. There can be no freedom if one man my steal another mans creation. There is only one rational way to deal with this issue, as I see it. There must be an agent who can respond to force. That agent is the state.

Do you think the case for IP depends on there being a state?

Your arguments are great for a libertarian. Unfortunately for libertarians, that makes them great arguments for anarchists.

Of course, I am an anarchist, since I oppose aggression, and since the state is necessarily aggressive.

But this is not the issue. The issue is whether is it rational to hate government of all forms. If someone wants to use what he has created, he had better choose a government that will protect his right to do so.

I don’t know waht you mean by “government.” The question is whether *the state* is justified.

***

Dwyer:

“This is the whole point: if it’s not scarce, no one can “deprive” you of it. As Jefferson said, it’s like someone lighting their candle from yours: you still have your flame.”

Suppose I don’t want them to light their candle from mine. If it’s my flame, why can’t I deny them access to it?

Sure! But if you don’t, then the information gets out. As Tucker said, “You want your invention to yourself? Then keep it to yourself.”

I wrote, “You also say, ‘Ayn Rand mistakenly assumes that the first to file [instead of “first-to-invent”] has priority (and then she is at pains to defend such a system).’ I think Rand would agree that ideally the first to invent should have priority. The problem is, how do you establish this priority legally?”

“Why do you assuem Rand would agree with this? She never says this, and explicitly defends the first to file idea.”

She defends it, but not in opposition to the idea of “first-to-invent.” She sees the filing process only as a way of making public one’s invention so as to ensure a mechanism for its legal protection. If there were a better way to do this, I don’t think she’d object to it.

I am not sure you understand how the patent system works. The US system has a filing process. It happens to be based on first to invent, rather than first to file. So I am not sure what you are talking about.

“Second, how would it be done? Like it’s done here. There is a system in place, called “interference,” to figure this out. Of course, it’s based on an arcane and arbitrary set of state-invented rules about “conception,” “due diligence,” and “reduction to practice,” but there are ways to do it. Rand was simply ignorant of it and in fact apparnetly did not even realize the US *has* a first to invent system already.”

Okay, but that lends further credence to the idea that if she were aware of it, she would not have had any strong objection to it.

This makes no sense to me. The US system at the time was based on first-to-invent. Rand assumed it was first to file and she wrote a defense of it. She was doubly wrong. I don’t understand how this logic redeems her.

Well, any patent system is a filing system, I suppose–but it can be either based on first to invent, or first to file. Moreoever, some here seem to think that the essence of patent infringement, is “stealing”–which means presumably copying and using someone else’s idea without their permission. Now a similar requirement is the case in copyright law–independent creation *is* a defense, there–but it’s not in patent law. So it seems that most pro-IP libertarians really favor some “copyright” based system even for protecting inventions–that is, patent would collapse into copyright (Rotbhard has a similar argument). But copyright is NOT a “filing” system. You get a copyright *automatically* in created works of authorship the moment they are “fixed” in a tangible medium of expression.

Okay, but there has to be some way of making one’s invention or creation public knowledge, and for that you need a legal system with certain rules that must be adhered to. I think you are quibbling over non-essentials.

Fine, but I find such comments to be maddeningly frustrating. I have no idea what you guys are *for*. You tend to agree with me on my concrete critiques. But what are the specifics of the system you are for? I don’t know.

I really think most libertarian advocates of IP have no idea of the way the real system works, and of the bizarre system they are defending.

Perhaps, but this has little if any bearing on the issue of intellectual property rights.

It seems to me if you are advocating a state-implemented system of rights, it’s incumbent on you to advocate what the hell you are talking about. This is similar, in my view, to the Objectivist critique of theism–theists are notoriously irrational in debate. They often say they believe in “God,” but if you ask them what “God” is, they crawfish and say that no one can know, his nature is not definite, they are not sure, it’s this and that contradictory thing, etc. I think IP advocates are actually similar to theists.

***

John:

Stephan I don’t understand this view of rights. If someone can’t deprive you of something, it doesn’t mean you still don’t have a right to it.

Why do you need a right to something you can’t be deprived of? Anyway, I was responding to an argument that said that it’s wrong to deprive people of something. I countered that if you do the same thing with your property that someone else is doing with theirs, this doesn’t deprive them of anything. IF you think “deprivation” is not essential to a rights violation claim, then don’t make this argument.

And I would disagree that someone doesn’t have the ability to deprive you of an abundant resource.

“Scarcity” here is economic scarcity–non-rivalrousness. Not mere lack of abundance.

That you repudiate then intellectual property rights because they are not scarce resources as your basis of what should determine is a right to property doesn’t make much sense to me either.

I repudiate them for this reason. To enforce a legal right *always* means to do something to or with someone else’s *tangible property*. Thus, to grant rights in IP or any non-scarce resource, *necessarily means* granting or transferring rights in tangible things. I think the Lockean homesteading rule is sufficient; IP brings in a second rule that trumps it. All criminal or socialist ethics are incompatible with the Lockean homesteading rule, just as the property rule implicit in IP is.

Only Rand wrote Atlas Shrugged. In that sense I would regard that to be a very scarce resource.

Copyright covers not only the right to literally reproduce, but non-literal reproduction, and various “derivative rights.” So by some accounts we could not even have this discussion. Or, you would be prevented from writing “John Armaos’s Prometheus Blinked: A Sequel to Ayn Rand’s Atlas Shrugged”–that is, if you wanted to write your own novel, with your imaginary rendering of what the characters might do next–you are physically prevented from doing so. Do you not see this as manifestly and obviously absurd and unjust?

Then you would be paying for a value! Right? Trading money, something the sculpter values, in exchange for the sculpted statue, something you value.

Some thing that I value is not “a value.” It’s a thing I value.

Yes, and that addition of more value is because the sculpter spent his mental and physical labor giving it more value, which is what he owns. He owned that physical and mental labor.

No, no one “owns” labor. Labor is just an action–something you do with your body. You own your body–that’s enough.

But creation requires labor, both physical and mental, and as you seem to agree, you don’t get to steal that either, correct?

Creation requires innumerable things–it requires that we have time, that there not be a storm, etc. Do we own every necessary condition of creating things?

Unless slavery is ok with you?

Some slavery is of course justified–jailing or punishing criminals, for example. But innocent people have a right to their own bodies. That rules out slavery. You don’t need to then talk about owning labor, any more than owning memory or emotions or ideas.

If it’s your labor, physical and mental, you get to dictate the terms on how you want to trade that physical and mental effort.

Sure–because you own your body an can choose what to do with it. But you don’t own your labor. This is a mystical, metaphorical confusion.

So when Rand wrote Atlas Shrugged, she owns the fruit of that physical and mental effort, namely a “novel”

Your “so” doesn’t follow. Question begging.

and can dictate the terms of that transaction, including not being able to reproduce her novels without her consent or compensation to her.

This is yet another confusion: you are attempting to say that copyright and patent could be based on private contractual arrangements. They cannot, since private contracts don’t affect third parties; but IP necessarily does.

What do you mean so what? So you have a right to your labor, whether that be physical or mental, and you have the right to trade that how you wish to. You seem to suggest by denying we have a right to intellectual property means I don’t have a right to dictate how I can offer my intellectual efforts?

Not so; you own your body, and your property; you can do whatever you want with them.

I.e. my mental effort, or in the case of the contractor his expertise. That has a value, that is intellectual property,

More question begging.

***

John:

I agree but you still have the right to sell your idea of how you changed your property to someone else. For example I could invent a product, and sell you the design. You don’t have a right to steal that design, i.e. take it without my consent. Because that design was mine.

Well, a contract between A and B is fine. But IP requires that third parties–C–be bound. Suppose A has a design for a house, and “sells” it to B. Now somehow someone leaks the design, or it gets independently invented, or widely known, whatever. Everyone knows about the design now, just as people knw of FallingWater’s design, or the general plot and characters of Star Wars, even if they have never seen the movie. How is C bound by the contract or sale between A and B?

I don’t think I ever recall economic scarcity defined this way. I believe economic scarcity means the supply of a product or resource cannot meet the demand.

Just look up non-rivalrousness, and you’ll see what I mean.

So basically you are saying no one should be able to sell their ideas, or expertise? I can’t sell you the design for my invention? I can’t sell you my novel?

Technically, no; practically, it depends. Let’s take the classic employment contract as an example. I don’t think you “own” your labor, so you don’t technically “sell” it. What happens is a laborer or employee and employer agree that the employer will pay $X for certain services, if the employee performs them. This is really a unilateral agreement: Employer simply agrees to pay, IF employee does certain things. This does not require the awkward presumption that one “owns” one’s labor. It’s just that being in control of one’s body allows one to profit off of using it.

I’m sorry I’m not arguing with currently how copyright laws work, we are or at least I thought we were engaging in a discussion of whether there is such a thing as intellectual property rights. I thought your position also includes that I don’t have the right to copyright my literary piece even from a literal reproduction without my consent?

If you are not endorsing current copyright law, then I am not sure exactly what “intellectual property rights” you are in favor of. This is typical of libertarian advocates of IP: they deny they favor current IP law, but are devoid of specifics of what they do favor. Again, it’s reminiscent of the tactics used by theists when cornered.

Again you’re just quibbling over a non-essential. With the premise that one own’s his own body, the logical extension of that is you own what your body can do. When an employer hires an employee, the employee doesn’t just trade his body for a specific period of time. He isn’t just some motionless robot sitting in the corner doing nothing, like “Ok you have my body, do what you want with it for 8 hours”. The employee moves his body and uses his mind, thus producing something fruitful, i.e. something of value (please, don’t quip back you can’t value a value, when I mean something of value I mean something that someone values, ok?).

I think the title-transfer theory of Evers-Rothbard is basically correct. A contract is a way to transfer title to things that are owned (ownable). The employment agreement is what I specified above: it’s usually simply a one-way, unilateral, conditional transfer of the employer’s property to the employee. It’s triggered by, conditioned on, the employee’s doing certain tasks. I don’t see that this is all that complex nor does it imply “ownerhsip” or one’s “labor.” I find this talk to be very slippery, non-rigorous, metaphorical–the kind of talk that would be engaged in by liberal arts majors 🙂

“That is his labor, and he owns that labor can trade it for something in return.” I guess you can look at it this way, if you must, if you are unable to comprehend what a conditional, unilateral title transfer is. Whatever helps you.

Well we own what our bodies can do, so that of course means we own our own time, and our own labor.

This is a great example of the absurdity that results from overreliance on metaphor. You think we “own” our own “time”…? What the heck does this mean??

“You can own your own mind and body and what it can do. And what it can do can be traded obviously as I said before.”

I can trade… what my mind can “do”, because I “own” it? … this is so confused.

Of course you own your own labor and this is not some mystical or metaphorical confusion.

Really? Can you leave it to someone in your will?

Let me guess: you think we own our actions too. Do we own our intentions? Our love? Our memories?

“So when Rand wrote Atlas Shrugged, she owns the fruit of that physical and mental effort, namely a “novel””

your “so” doesn’t follow. Question begging.

Please explain.

It’s question-begging to assume that she owns the fruit of her labors. That’s the question here.

“and can dictate the terms of that transaction, including not being able to reproduce her novels without her consent or compensation to her.”

this is yhet another confusion: you are attempting to say that copyright and patent could be based on private contractual arrangements. They cannot, since private contracts don’t affect third parties; but IP necessarily does.

This is a non-sequiter. A private contract between two parties also doesn’t mean a third party can steal the product. If I sell you a car, that doesn’t mean Bill gets to steal that car from you because he wasn’t a party to that contract.

That’s because the car is an ownable, an owned, thing. The question is whether IP is.

I don’t need a contract with all third parties stating they can’t take my property without my consent. So likewise if I sell you a novel and retain a copyright to that novel, I’m saying that I am only selling you the book itself with the words printed in it, I’m not selling you the right to reproduce those words.

This is essentially Rothbard’s argument. The thing is, a car is owned. If a third party uses it without the owner’s consent, he’s a trespasser, even if he’s an innocent one.

But suppose I think of a way to use my own property in a more efficient way. How is this even possibly a trespass on the “idea” of some other guy who registered his similar idea with a state agency? Or suppose I am shopping at Wal-Mart and see a new fishing rod with a cool mechanism. I can’t afford it but I am handy, so I modify my own fishing rod in a similar way. How am I trespassing? HOw does an agreement between the inventor, and some second party, implicate me?

Suppose waht I see inspires me and I think of an improvement. Who owns that?

Etc.

***

Bill Dwyer: “Your posts are confusing, because you’re not clearly separating your own comments from those you’re responding to. The casual reader would have no idea who is saying what. I happen to know, only because I wrote the comments you’re addressing.”

Sorry… I was trying to keep the length down.

“Secondly, you seem so intent on attacking Rand that you won’t for a second entertain any reasonable explanation on what her position might have been. Look, Rand didn’t, and Objectivists haven’t, to my knowledge, given this issue any kind of in depth analysis or treatment. The best one can say is that Rand favored legal protection of patents and copyrights, period! She didn’t address the distinction between “first-to-file” and “first-to-invent.” She may not even have been aware of it.”

But she said, “patents are the heart and core of property rights”! She clearly favored IP rights, strongly; and also reputation rights, which is a similar type of argument. To claim so strongly that patent rights are so important, and to be so adamant about it–then one has an obligation to know what one is talking about and have a clear argument. My point is her argument is confused, and her confusion and ignorance of the filing/invention priority issue is illustrative of this.

Look: when I devoured Rand’s stuff in HS and college, I initially accepted her comments on patents and copyrights. But something about it always bugged me as too utilitarian, too incomplete, lacking. After law school, as I began to practice patent law, my gnawing doubts about her argument resurfaced and I began thinking harder about it. I became convinced Rand’s argument for IP was flawed, so I tried to find a better argument for IP. After a while I realized I was striking out, simply because IP is NOT justified. This realization hit me like a ton of bricks, but once I accepted this as a possible conclusion, the arguments all came together.

“In any case, this is an issue for the philosophy of law. As far as I know, Objectivism has no stated position on it.”

Objectivists are almost universally strongly in favor of IP. If they don’t understand what they are really advocating, maybe they ought to be a little less strident about it. (Or am I missing your point?)

“Secondly, you seem so intent on attacking Rand that you won’t for a second entertain any reasonable explanation on what her position might have been.”

I am not intent on attacking Rand. As I noted above, I tried for a long time to square her IP views, but they just don’t work. I also came to be more skeptical of her whole approach to rights, partly b/c of this, but that’s another story. Anyway–I am not sure what you mean here: why do we need an explanation for what her position might have been? She is explicit about her position: she thinks first-to-file is justified, and defends it. She just didn’t realize what she was favoring was the patent system in place in most countries other than the US. I think her position is that the first to file should win. She says this. Why do you doubt her?

***

John:

Stephan:

Well, a contract between A and B is fine. But IP requires that third parties–C–be bound.

Stephan, as I already said before, third parties are always bound to NOT STEAL YOUR PROPERTY. You don’t need a contract with a third party stating that they can’t steal your property.

I agree, but the question is whether there IS intellectual property. If there is not, there is no stealing.

So for example, suppose I’m generally aware of the plot for Star Wars, but have never even seen it. Suppose I write “Stephan Kinsella’s Further Adventures of Luke Skywalker”. What am I “stealing”? Or suppose I am generally aware of how lasers work, and decide to make my own. Of course, I learned about this b/c of the efforts of the original inventors. What am I “stealing” if I make a laser?

You are always legally bound to not steal, regardless of whether there is a contract or not.

which is why you shouldn’t bring up the contract between A and B; it’s irrelevant to C.

You wrote:

I don’t think you “own” your labor, so you don’t technically “sell” it.

And bizarrely, you then try to make some distinction but end up saying almost the exact same thing as selling one’s labor:

What happens is a laborer or employee and employer agree that the employer will pay $X for certain services, if the employee performs them.

Yes Stephan, SERVICES, what do you think SERVICES means? That means selling your LABOR. That means exactly the same as selling your labor and the employer buying that labor. Please explain what the distinction you’re trying to make here?

I didn’t mean to distinguish between labor and service. They are the same for purposes of this point. My point was it’s imprecise to say you are “selling” your labor (or services). The reason we say this is shorthand, b/c it’s similar to the structure of a normal bilateral exchange, where A and B trade items they own, exchange them. One pays for the other.To have an exchange you have to have owned things–title for one is transferred to the other party, “in ecxchange for” and conditioned on the other party doing the same.

In a service contract, there is only one title transfer: the “buyer”‘s money transfers to the laborer. The title is trasnferred conditionally: upon the laborer’s performing some action. By performing the action, by fulfilling a condition, the actor does not necessarily transfer title to anyhthing to the buyer; he just does something the buyer wants. Take another example: suppose I agree to pay you $100 *if it rains tomorrow*. The raining is just a trigger or condition. If it does rain, then title to the $100 trasnfers. But that does not mean “title” to the “raining” transferred to you, or that anyone owned “the raining.” Likewise, in a service contract, the service is just the trigger for the payment. It’s a one-way title transfer. The point is to show that despite common description of this as a “sale” of labor, which seems to imply labor is owned, this assumption is not necessary, nor is it coherent. We do not own our actions. We own property–our bodies. Owning one’s body is sufficent to allow one to act with the body however one likes. Just as having property rights is sufficient to allow me to print books or speak on my property.

Dictionary.com

Labor: 1. productive activity, esp. for the sake of economic gain.

yes, yes, I agree w/ this.

If you are not endorsing current copyright law, then I am not sure exactly what “intellectual property rights” you are in favor of. This is typical of libertarian advocates of IP: they deny they favor current IP law, but are devoid of specifics of what they do favor. Again, it’s reminiscent of the tactics used by theists when cornered.

Your accusation is unwarranted Stephan. You don’t need to understand what the current laws are in order to have a definition of rights. Do you think without laws there would be no way to meaningfully define rights? Can’t we define free speech in the absence of a legal code? It seems you think we derive our rights from the law? Is that your position?

Intellectual property rights are the creations of the mind for the use of economic gain, such as music, literature, artistic works, inventions, logos, designs used in commerce, etc.

Now, how the legal code is set-up to interpret what is a theft of that creation, for example whether it only be restricted to literal reproductions or more broad an interpretation is not integral to the philosophical discussion of whether intellectual property rights is a legitimate concept or not. You think there is no such thing as IP, I think there is. You point out a PARTICULAR OBSERVATION about the CURRENT legal code, that being even vague interpretations of a literary piece as being a violation of copyright. But your issue is not just vague interpretive reproductions, your issue is that you think someone should be able to reproduce a literary work in any which way and that the author has no right to copyright his work against ANY KIND OF REPRODUCTION.

I don’t think it’s unfair; I see this all the time. I think those who have an inkling of how the patent and copyright system really work would realize there are hundreds of questions and doctirnes that have arisen out of necessity to refine IP law–so any IP system will have to answer these questions: scope; duration; exceptions; jusfication; damages or remedies for infringement; geographic scope; etc. I think the advocates of IP mostly have no clue as to what kind of system they are really in favor of; they just think “the lawyers can figure it out; it’s just a detail.” It’s NOT just a detail. Every injustice I point to, you guys agree with me. So I say, well that would render IP meaningless.. so waht are you in favor of. You don’t know. I don’t know how to respond to this. Why are discoveries exempt? What about fair use? Why is the term finite? Why is it 17 years and life-plus-70 years? Is the DMCA justified? Injunctions in patent cases? Should the loser pay? Etc etc.

If you say you are just making a general statement about rights, as Tibor did, “anything you create that has value is property,” then I can point to — as I have — many obviously unjust implications of such a broad or general statement. So it obviously has to be refined before we can talk about what exactly you are proposing. As far as I can tell you guys are in favor of “some” kind of “IP” protection–not exactly like we have no, of course; and not with the dozens of types of injustices I can point out in the current system; exactly what, you are not sure, after all, you’re not a “legal expert”. were I still an Objectivist I might use Rand’s phrase “blank out” here. 🙂

I don’t see that this is all that complex nor does it imply “ownerhsip” or one’s “labor.” I find this talk to be very slippery, non-rigorous, metaphorical–the kind of talk that would be engaged in by liberal arts majors 🙂

I don’t need the thinly disguised insults with a smiley face Stphan. So thanks but no thanks, I’ll choose to ignore these idiotic comments.

Well, no one ever accused Objectivists of not having a sense of humor. (Or have they? 🙂 Look, I was only kidding–it’s my analytical engineering background that has me poking fun at liberal arts types. Engineers are just as bad as liberal arts majors, when it comes to philosophy.

“You can own your own mind and body and what it can do. And what it can do can be traded obviously as I said before.”

I can trade… what my mind can “do”, because I “own” it? … this is so confused

You mean confusing? Stephan no offense, but is English your second language? That may explain why don’t understand.

No! I should perhaps have said “confusing” but I think “confused” is grammatically correct there. BUt I’ll defer to the liberal arts majors on this.

Of course you own your own labor and this is not some mystical or metaphorical confusion.

Really? Can you leave it to someone in your will?

No, since labor requires ACTION, and the presumption of leaving something in your will means you have become a CORPSE, i.e. a motionless body, then NO YOU CAN’T LEAVE YOUR LABOR.

Good. I agree. However, you can leave your corpse to a designated recipient. This helps illustrate why it’s mystical nonsense to talk about owning action.

But you even use the term “service” as a legitimate concept that one can TRADE. So the fact that you are accusing me of using mystical metaphors only demonstrates your gross hypocrisy.

It’s hard to avoid using the common parlance. I’m simply trying to avoid being tedious, while pointing out the dangers of using imprecise language. It’s okay to say sell or trade, if you keep in mind that this describes the economic reasons one engages in the agreement, and its similarity to a normal barter or title exchange–so long as one keeps in mind this is not literally the case.

You think someone can trade a service for something in return, is that also a mystical metaphor Stephan?

Look, it’s really just semantics. It depends on what you mean by “sell” or “trade.” If you mean by this what I said before–describing a unilateral, conditional title transfer, where the labor said to be “sold” is really the object of the title transfer, or the goal of the buyer, that’s fine. But the problem is that people use this term too literally and then extrapolate from that that you “own” your labor; and therefore, you “own” whatever you “create” with it, no matter what ontological kind of thing it is. This lets them skip the inquiry of whether the thing is an ownable type of thing.

Can I accuse you of being just like a theist?

Yes, you can, and you may. But you would be incorrect.

You are of course equivocating the words “SERVICE” that is indistinguishable from “LABOR”.

I agree they are the same. That is not my point.

Let me guess: you think we own our actions too. Do we own our intentions? Our love? Our memories?

You are equivocating the concept labor with “intention” and “love”. It’s not just ANY ARBITRARY KIND OF ACTION. It is a SPECIFIC KIND OF ACTION.

So only some kinds of actions can be owned? What kinds, exactly? What are the criteria for ownability? I say it’s the rivalrous character of a good.

Labor is an activity for economic production, a synonym would be “service” as I stated above that you seem to agree is a valid concept. You can trade your SERVICES for something in return.

Sure, but not b/c we “own” them.

Our “love” is not an activity for economic production.

No offense, Elliot Spitzer. 🙂

“I don’t need a contract with all third parties stating they can’t take my property without my consent. So likewise if I sell you a novel and retain a copyright to that novel, I’m saying that I am only selling you the book itself with the words printed in it, I’m not selling you the right to reproduce those words.”

This is essentially Rothbard’s argument. The thing is, a car is owned. If a third party uses it without the owner’s consent, he’s a trespasser, even if he’s an innocent one.

But suppose I think of a way to use my own property in a more efficient way. How is this even possibly a trespass on the “idea” of some other guy who registered his similar idea with a state agency?

As Bill stated above “She defends it, but not in opposition to the idea of “first-to-invent.” She sees the filing process only as a way of making public one’s invention so as to ensure a mechanism for its legal protection. If there were a better way to do this, I don’t think she’d object to it.”

I think you guys may be confused: *filing* is required in both first-to-file, and first-to-invent, systems. In a first to file system, if A and B each file similar patent applications, the one who filed first wins. In a first to invent system, you have an interference and the one who can prove he *conceived* of the idea first wins (assuming he can prove “diligence” in reducing it to practice and/or filing) even if he filed second.

The fact that the current legal code has set up a way to have some way that an individual can meet a burden of proof their creation was their own and prove someone else has stolen their property doesn’t negate the philosophical concept of intellectual property rights.

It shows that Rand was unwittingly justifying the European way of doing things rather than the US way, while thinking she was defending the American system. Who konws, maybe the European way is right–the US Congress is considering changing to a first to file system as a matter of fact.

That you are quibbling over how patents and copyrights are LEGALLY ISSUED is not at all important to whether you think intellectual property rights exist or not.

It’s important to illustrate *why* RAnd was wrong, why her argument is flawed, why it’s incomplete and that she was confused. It’s just a supplementary point. Helps flesh things out.

You think they don’t exist at all, regardless of how the law is designed to establish the due process for PROTECTING THOSE RIGHTS.

correct. And every concrete criticism I make of various injustices flowing from the Ip system, is met by pro-IP libertarians with agreement–“Oh, we’re not in favor of THAT”.

Or suppose I am shopping at Wal-Mart and see a new fishing rod with a cool mechanism. I can’t afford it but I am handy, so I modify my own fishing rod in a similar way. How am I trespassing?

I’m familiar with the legal definition, that of entering onto someone’s property without their consent. I should think “theft” is sufficient enough a word to describe taking someone’s property without their consent. So I don’t understand how Rothbard is using the concept trespassing here if you are in fact correctly interpreting his ideas. Trespassing doesn’t have the element of theft added to it, it is only entering onto someone’s property without their consent, for it to be theft would require TAKING property, not merely ENTERING onto the property. So I think the term trespassing is lacking here.

Ho-kay. I’m just asking: how did my actions of making the fishing pole violate anyone else’s right? What did it “steal”? (Which is the claim implicit in pro-IP views.)

BTW I view trespass as the general category that all rights violations fall under, even theft. Trespass means unconsentd to use of property, to my mind. All crimes are types of trespass, just as all rights are property rights. D’you agree?

***

Ed Thompson:

The state by definition is corrupt and unjust, since by its nature it either taxes, or outlaws competition. Either of these actions is corrupt/unjust.

That’s inaccurate. It’s a definition-by-nonessentials. What’s essential for a governing body, or a state, is that it enforces rules of conduct somewhere. The “enforcement” is law enforcement. The “rules of conduct” are the laws. And the “somewhere” is the region. Without any one of these 3 essential characteristics, you can’t — by definition — have a governing body or state.

Your definition smuggles-in the irrelevant non-essential of “mandated, general taxation” (MGT), and also the unacceptable “argument-against-non-competition” (AANC). What makes MGT irrelevant is that the state can exist without it (it’s a nonessential). For instance, the US government existed without MGT for its first 75 years.

Okay, let me put it this way: anything that taxes is unjust. Anything that monopolizes the institution of justice by outlawing private arrangements between peaceful people is unjust. Now, if you think a state does not do these things, then we must be talking about different animals. I simply oppose any institution that does these things. Whether it’s “essential” or not.

Now, do you oppose taxation, and the initiation of force involved in outlawing peaceful private defense arrangements? IF you so, you are an anarcho-capitalist in my book. If not, you support aggression, so are not a libertarian.

What makes AANC unacceptable (as an argument) is that it relies on prior acceptance of the faulty premise that “competition’s always best” (CAB).

Actually, it doesn’t. I’ve never made this argument. My argument is simply based on the observation that it’s wrong to commit aggression (as Rand said), including aggression committed by the state, such as its taxation and justice-function-monopolization.

As a proper government administration doesn’t have sovereign “authority to determine” objective law (only Reason can do that), neither do the people have the authority to determine objective law.

BUt the state is composed of people–people of the lowest sort, usually, who are armed, and who violently rule and tax the populace. Why would you think the state is able to determine objective law, if normal people aren’t? Why is this argument any better than the liberal one that the government ought to have guns, but not private citizens?

Robert Malcom:

Taking the example of the fishing rod with the ‘cool’ mechanism – what if you decided not just to make one for yourself, but to make many of them, and in turn sell them….. is that theft, violating another’s rights [the one who first made those rods], or enroaching on that other’s ability to keep selling?

In my view, of course it’s not theft. Of course, all human action and creativity relies on things others have learned or created. We rely on language, common culture and traditions etc. Trends are copied and adapted and learned. Business trends, methods, ideas, ways of doing things; science, technology, commerce; literature etc. They all continually build on things people in the past have done. This is human civilization. It is utterly bizarre, absurd, unjust, nonsensical, to try to arbitrarily single out some recipes, information, discoveries, etc., and to say they are “owned,” and leave the rest as some kind of common background all are able to dip into.

I believe it is utterly arbitrary–the bete noir of Objectivists–to make the distinctions that IP necessarily does in protecting some types of intellectual creations but not others. It would be suicidal to try to apply the idae of IP consistently; thankfully, Objectivists don’t do this, but to avoid this, they introduce arbitrary distinctions (limiting the scope of IP; limiting its duration to some arbitrary finite term).

***

Robert Malcom: “Ok then – what if you have an idea, but no means of financing it – yet if it is told to one with the financial means, what to keep that one from making use if it, leaving you out in the cold – why, then, bother creating the idea?

Seems there is a sort of Crusoe view being expoused here…”

It seems you asking what is the libertarian or Objectivist view on how to run a particular business. I don’t think it’s about that, or that we have to answer such questions. Let the entrepreneurs figure this out.

Many business ventures have costs of exclusion. That’s just life. Drive-in movie theaters adopted speakers next to each car, so stop free riders. It cost someting to install this. If this cost had been prohibitive, there would have been no drive in movies, or they would have just put up w/ the freeriding. So what?

***

Dwyer: “A good is “scarce” if it commands a non-zero price. So, every good or service that is bought and sold on the market is “scarce” according to this definition.”

Untrue. It has nothing to do with price.

***

Ed:

… anything that taxes is unjust. Anything that monopolizes the institution of justice by outlawing private arrangements between peaceful people is unjust. Now, if you think a state does not do these things, then we must be talking about different animals.

We’re talking about different animals. You’re talking about some of the world’s instantiations of government (and visualizing those concrete things as if they were effective “stand-ins” for the universal concept: “government”). I’m talking about what government has to be in order to be.

Now, do you oppose taxation, and the initiation of force involved in outlawing peaceful private defense arrangements?

I oppose taxation without representation, such as when the Feds take my cash for redistribution schemes such as corporate welfare (and hundreds of other schemes). I don’t oppose “user fees” — which are, at root, a “use tax.” User fees ensure representation. One can always withdraw from paying user fees — and such individual withdrawal of funds effectively keeps government moral.

I oppose outlawing peaceful private defense arrangements, but I don’t oppose outlawing non-peaceful private defense arrangements — such as those that break objective law; which happens to be something sufficiently discoverable through the use of objective reasoning (its discovery doesn’t require a “market”).

Great. It seems you don’t favor a state at all, so are an anarcho-capitalist like me.

My argument is simply based on the observation that it’s wrong to commit aggression (as Rand said), including aggression committed by the state, such as its taxation and justice-function-monopolization.

This reasoning appears guilty of the fallacy of Floating Abstraction. It ignores the idea that consentual user fees can pay for government (rather than conventional taxation), and it ignores the idea that discovery of objective rule of law is possible without a market. Once we reach the attainable ideal of objective rule of law, then private defense arrangements can be judged according to it. Undoubtedly, some of these private arrangements will be found to be unjust, and on that note alone force should be taken against them (unjust law is law in name only — and should not be obeyed nor allowed to be propagated).

First time I’ve been accused of the floating abstraction fallacy–ther’s a first time for everything I guess.

Why would you think the state is able to determine objective law, if normal people aren’t?

I didn’t say that. Objective law is not “determined” in the strong sense of the term, but instead it is “discovered” through the human use of Reason. It’s one issue — perhaps the ONLY issue — where “markets” aren’t helpful to mankind (because they miss the point).

I never said the “market” does it. I simply don’t think it makes sense to hold that a group of organized thugs are better at it than private citizens.

John Armaos:

Stephan wrote:

I didn’t mean to distinguish between labor and service. They are the same for purposes of this point. My point was it’s imprecise to say you are “selling” your labor (or services).

Stop being obstinate. What does a doctor sell to his patients? A SERVICE. What does a lawyer sell to his clients? A SERVICE. What does a babysitter sell to her clients? A SERVICE.

There is a whole sector of the economy called the SERVICE INDUSTRY. What do you suppose they are selling? DUH! A SERVICE!

And that’s it! I’m not talking about something so god damn simple as that anymore. Either you understand or you don’t. I’m convinced you just want to be right for sake of being right.

John: I simply don’t want to be held to be admiting that we “own” our “labor” just b/c I grant that you can enter into a contract that is economically viewed by the parties as “selling” the labor. That’s all. B/c I think that error has far-reaching implications.

the question is whether there IS intellectual property. If there is not, there is no stealing.

So for example, suppose I’m generally aware of the plot for Star Wars, but have never even seen it. Suppose I write “Stephan Kinsella’s Further Adventures of Luke Skywalker”. What am I “stealing”?

You are stealing George Lucas’ creation of the fictional characters and plots he created for his films and books to which he copyrighted.

You don’t copyright anything–it’s not a verb. It’s not an active thing, like a filign or registration. He is simply granted one automatically by federal law. But anyway, you are just begging the question here.

Why Stephan, do you think the United States has invented more drugs, more products, more literary works, more music, more movies, more television programs THAN ANY OTHER COUNTRY IN THE WORLD!

B/c we’ve had a freer economy? Anyway, is your case for IP that it generates more pharmaceuticals, or some similarly utilitarain case?

I’m very thankful we have some recognition of intellectual property rights in this country, even if the current system is flawed. It is better than not recognizing them at all.

Ah, so you ARE in favor of our current IP system. Except for all the defects in it that i keep pointing out.

The United States produces more new drugs than any other country in the world and not surprisingly, the United States has for its legal code the most recognition of intellectual property rights than other nation in the world. That correlation Stephan is not a coincidence.

How do you know this? I think it’s despite IP law, not b/c of it. THe IP system as far as I can tell is a huge drag on the economy, if you want to get all utilitarian.

Why do you keep bringing up liberal arts majors? What the hell difference does that make? What in the hell does engineering have to do with the discussion of INTELLECTUAL PROPERTY RIGHTS?

Wait a minute, I checked Stephan’s profile and he says he’s a patent attorney. WTF? What gives Stephan? Was this whole thing some elaborate fraud on your part? You are a patent attorney but you don’t believe in patents?

Uh, the fact taht I’m a patent lawyer is all over the net, and mentioned in many of my anti-IP pieces; and even on this comment thread I mentioned I started questioning RAnd when I started practicing IP law.

What “fraud” are you talking about? Does a tax lawyer have to believe in taxes? Jesus. See my The Morality of Acquiring and Enforcing Patents, available here.

***

John Armaos:

John: I simply don’t want to be held to be admiting that we “own” our “labor” just b/c I grant that you can enter into a contract that is economically viewed by the parties as “selling” the labor. That’s all

You don’t copyright anything–it’s not a verb. It’s not an active thing, like a filign or registration. He is simply granted one automatically by federal law. But anyway, you are just begging the question here.

And like the rest of your posts, you don’t actually lay an argument why I’m begging the question.

When I say you are begging the question, I’m saying your argument is not complete, that it is circular. How am I supposed to prove a negative? When the issue is whether intellectual creations are property, and you say it’s “stolen,” that begs the question by assuming what is to be proven–namely, that it’s property (this is implied by “stolen”).

And you are wrong, the term copyright can also be used as a verb.

John. Please tell me how you “copyright” something? When people say “copyright” as a verb, they say it b/c they mistakenly think that the coypright system is a registration based one, and that by “filing” a copyright registration, you are copyrighting the thing registered; or they maybe think that by stamping it “copyright” they are “copyrighting” it. I am pointing out that this is a mistaken assumption. There is no requirement to register, or to put a copyright notice. Yes, to “copyright” something does mean to “secure a copyright on”–but this has no referent, since you never secure a copyright on something. It’s automatic, and the result of federal law.

Ah, so you ARE in favor of our current IP system. Except for all the defects in it that i keep pointing out.

As I already said Stephan, I favor some system that recognizes intellectual property. I don’t presume that the system is perfect. I know there are flaws. But you think the whole system should be scrapped and we shouldn’t recognize any kind of intellectual property rights. I don’t care to talk about those defects because I don’t know enough, and you obviously have a better understanding of the current legal system with that.

HOWEVER, I could make a similar argument that the current judicial system has flaws. That it has defects that I could point out. If you were to be logically consistent, then you would favor scrapping the entire judicial system and not recognizing murder is a violation of rights.

Well, as an anarchist, I DO favor scrapipng the current judicial system. But anyway, I don’t oppose IP b/c of the flaws I identify: I oppose it for principled reasons: b/c in my view it’s incompatible with individual property rights. Pointing out the flaws is mostly for the benefit of utilitarian or concrete-minded people.

So again, it is a fallacious argument to philosophically deny the existence of a moral principle because the legal system is flawed because moral principles, i.e. rights, are derived before one can go about setting up a legal system for the recognition of those principles. The law comes after we first establish what is moral. So if the law is flawed, it does not necessarily mean the moral principle it is based on is flawed. I don’t think that’s all that hard to understand.

All I can say is that as an IP attorney, with an intimate knowledge of the IP system, I am unclear as to the contours of the system you purport to advocate, so I am at a loss as to what critiques to make of it, otehr than the general, principled one I have already made in detail.

I originally wrote in response to Stephan’s insults:

Why do you keep bringing up liberal arts majors? What the hell difference does that make? What in the hell does engineering have to do with the discussion of INTELLECTUAL PROPERTY RIGHTS?

You respond:

Dude, settle down. First, it’s funny.

Well I don’t find it funny. And just because an insult is funny to you doesn’t mean it’s funny to me. Putting a smiley face at the end of your insult and telling me you find it funny doesn’t exculpate you from the ad hominem attack. I find it cowardly to attack a debating opponent on his choice of a college major. I expect nothing more than honest debate and I will call you out for any intellectual dishonesty. My college major does not validate or invalidate any of my arguments any more so than your engineering degree validates or invalidates your arguments. It is totally irrelevant.

Oh, for God’s sake. Sorry, okay! I “retract” my comments (officially, in the Official Objectivist Book of Retractions).

Uh, the fact taht I’m a patent lawyer is all over the net, and mentioned in many of my anti-IP pieces; and even on this comment thread I mentioned I started questioning RAnd when I started practicing IP law.

What “fraud” are you talking about? Does a tax lawyer have to believe in taxes? Jesus. See my The Morality of Acquiring and Enforcing Patents, available here.

Ok fair enough. On the surface it seemed absurd to me that a patent lawyer would argue against the existence of patents. So I apologize for coming to a rash judgment like that. I I took offense to you repeatedly bringing up liberal arts majors as I view that as nothing more than a condescending insult. Will wait to hear your apology for that.

Alright, I apologize to whoever was offended by my comments about liberal arts majors. They are not all stupid, and not all engineers are smart. Everyone is an individual. Etc.

But I am curious why you would think it absurd a patent attorney opposes patents. Surely people don’t have to be corrupt and biased by things that are in their narrow economic self-interest? I could imagine a public school teacher who opposes public schools, just like many Objectivists are professors at state universities.

***

Jon Trager:

Stephen: “Uh, the fact that I’m a patent lawyer is all over the net, and mentioned in many of my anti-IP pieces; and even on this comment thread I mentioned I started questioning RAnd when I started practicing IP law.

“What “fraud” are you talking about? Does a tax lawyer have to believe in taxes? Jesus. See my The Morality of Acquiring and Enforcing Patents, available here.”
John: “Ok fair enough. On the surface it seemed absurd to me that a patent lawyer would argue against the existence of patents. So I apologize for coming to a rash judgment like that.”

It still seems absurd to me. What, *in essence*, does a patent lawyer do? He argues for legal titles to intellectual property on behalf of his clients, no? If I’m wrong about this, I’d appreciate a correction.

Patent attorneys do many things. One thing is to advise clients on their legal rights. Another might be to file for patent applications–to help obtain patents. Another might be to defend them in litigation, or to help them sue a patent infringer.

Even if you oppose patents, there is nothing necessarily wrong with obtaining them–like guns, they can be used for good or for evil. To sue someone is arguably bad, but what if you are sued for patent infringement?–wise to have your own arsenal to strike back with. Etc. Most patents are acquired or defensive purposes anyway (which is another reason the whole system is a waste).

If I’m right, then Stephen’s chosen work, the central purpose of his life,

My job is the “central purpose of my life”? Wow. Not my wife, or kids, or family, or maybe libertarian activism?

Anyway,

*by his own argument* primarily consists of helping some individuals violate the rights of others by gaining or keeping legal titles that he views as wrong (under his utilitarian analysis).

It’s not true, as I noted above. Obtaining a patent is not violating rights. Nor is using one as a counterclaim (defensively). Only suing an innocent person is arguably rights-violating.

And even here: it is not MY decision, but my client’s. Is the lawyer responsible for what the client decides?

This makes no sense to me: if enforcing a patent is immoral, it’s only immoral if it’s engaged in by someone who disagrees with patents…? But it’s okay for those who mistakenly think patents are justified?

Look, let’s suppose the patent system is immoral per se. Who do you expect to be able to see this and articulate arguments for–isn’t an “insider” ideally suited to being able to see this? Your argument is reminiscent of one I find truly repugnant–when a black like Clarence Thomas opposes affirmative action, he is critized by the left–mostly by white latte liberals–for opposing it, since “he benefitted from it.” This is a truly disgusting, evil argument (not saying yours is this bad–it just reminds me of it a bit in structure): first, the liberal is using the very arguments that he attacks when opponents of affirmative action make (i.e, we critics say that one problem w/ aff action is that it makes people doubt the success of really competent blacks; the liberal expresses outrage over this argument, yet relies on it here); second, he’s saying that not only do we have to succumb to and abide by the immoral law he has succeeded in foisting on us, but that we can’t complain about it either–that blacks can’t complain… once you are roped into a system that “benefits” you, you are now forever unable to complain, b/c that woudl be hypocritical. So they are foisting the bad law, the bad system, on you, and also foisting on you a type of “hypocrisy” that you are unable to escape if you even criticize it. They try to turn everyone into dependent parasites, so that no one is morally clean enough to object any more. Utterly disgusting.

I agree with Rand, when she said we are not obligated to be martyrs. I agree with Rand’s idea of the face without pain or fear or guilt. I have none. This G*ddamned legal system is not *my* fault, and I refuse to be penalized in my life for it, or to take blame for it. Not an ounce.

***

Right on, Fauth. Exactly right.

Look, dishonest and/or stupid types go crazy if you say there is no right to free speech, but only a right to own and control your own property. They dishonestly say that you are in therefore favor of censorship.

Likewise, many libertarians go nuts if you say you don’t “own” your labor–they say, “you are in favor of slavery then!!” It’s like, calm down. They don’t realize that we simply believe that owning one’s body and property one acquires is *enough* to let you do any of the other things we are said to have rights to–right to produce, to be free, to publish, to speak. These are all really just consequences of the basic right to self-ownership. They are not separate, independent, stand-alone rights. Rand at least implicitly recognized this:

The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible.

This is all I am saying if I say that we own our bodies, but not our labor; labor is what we DO WITH our bodies. It’s not a separate thing or substance that you own. Since you own your body, you can decide *what to do with it*–what services, labor, or actions, to perform. This gives you the practical ability to obtain payment for performing these services–since your ownership of your body gives you teh abilty to choose whether to do a certain action or not. So you can make a deal with someone else who wants you to do something, so that he pays you if you perform it. None of this implies you “own” your labor.

***

John Armaos:

Jonathan:

If you own a lawn mower and cut someone’s yard for money, would it make any sense to say that you own the action of cutting the grass? It doesn’t to me.

If it is your effort, it is your own and not anyone else’s. Does that make more sense? If it’s not your effort, and your not entitled to trade that effort or that action for something in return, then you undercut the notion of freedom of action.

I think the mistake you are making is in assuming anything you can conceive of, has an owner. If I don’t own it, then it means someone else must. Or something like this.

Look, you don’t own “effort”. Effort is something you do with your body. You don’t need to own your actions, to profit from them. You can tell someone who wants you to do something, I won’t do X unless you agree to pay me $100 IF I do X.

You own the lawn mower and your body, but I don’t see how you can own the intangible actions associated with them.

Jonathan I don’t understand what you mean by “intangible action”. What kind of action is there other than tangible actions?

I think he means ephemeral or fleeting; not a separate, ownable *thing* separate from one’s body. It’s one of the things one *does with* one’s body.

One should be careful not to equivocate the language being used here. A tangible asset is not the same as a tangible action. Motion is not an object, but it is something that can be traded and in that sense it is tangible (tangible here meaning real or actual).

The fact that your action can be “traded” does not imply you own it. What is really going on in a trade like this is a unilateral transfer of title, *triggered by* the action. But there is no title to the action to transfer. Surely you would not say that if I “sell” you my labor, now you “own” my labor? After I perform what you wanted me to perform, are you in possession of my labor? Do you “own” it?

You and Stephan are using ownership to only mean a tangible asset, I’m not defining ownership that narrowly. As Stephan agreed before you can trade your own labor,

Only with the caveat that it means what I stated above–this is exactly why I was being careful about it, since otherwise it gets twisted into implying that labor is ownable.

and it doesn’t make much sense when you enter into a contract with an employer that you are trading your “body” for money in exchange. You are of course trading the motions of your body for money in exchange.

You can use “trading” if you want, but as long as there are not mutual exchanges of *title*, the agreement is really only a unilateral transfer of title. It’s one-way only.

That is you are trading your productive effort.

Fine. You can put it this way. But it does not mean you really have title to your labor or effort, or that the “buyer” receives title to your effort.

Look, think of an example: A pays B to sing for C for her birthday. A is not even present, but B shows up and sings for C. C is delighted and visits A, and gives him a big kiss of gratitude.

Now, surely it’s confusing and awkward (and unnecessary) to say that when B sang for C, A acquired title to B’s actions?

When you decide to mow someone’s lawn in exchange for money, are you exchanging your body or your lawn mower with your client? Of course not, you are only trading the particular motions that your body and your lawn mower will be making.

Actually, you are not exchanging anything, since you are not giving any title away. You are just *doing something* the buyer wants done. It’s not really an exchange–if by exchange you mean exchange of title.

Time is a measurement of motion. And when someone refers to “their time” they are referring to their motions, or actions. That’s how we get the expression owning our own time. It literally means owning our own motions.

I’m getting to the point of diminishing returns with you. Either I can’t think of a way to splain it, or you just don’t get it. I think you are misunderstaning what I’m saying, so probably my fault.

Look, you don’t own “effort”. Effort is something you do with your body. You don’t need to own your actions, to profit from them.

If you don’t own your own actions, then someone else does

Perfect example of my point: you think everything has an owner. That’s why you feel compelled to say that it’s owned by the person it’s related to, otherwise, someone else owns it. I think this is nonsense, but apparently am not reaching you.

, and you are thus a slave. To deny that our efforts don’t have any tangible measure to them is to deny the existence of the freedom of action.

I have no idea waht it means to deny that actions have a tangible measure to them. What this has to do with ownability of “actions” is beyond me.

I think the mistake you are making is in assuming anything you can conceive of, has an owner. If I don’t own it, then it means someone else must. Or something like this

Yes something like that. My thoughts are my own, not yours.

Thanks for confirming my suspicions.

The way I conceive it, just b/c language puts a possessive “your” on something does not mean it’s really an ownable piece of property. I have memories of my childhood; I have love for my wife; I don’t “own” these things, and to say this doesn’t mean someone else does–it means they are not ownable things. What you seem to be missing is that just as Rand said that property rights are the only rights, owning your body is enough to give you the right to control your actions. Don’t you see? Owning your body *is*, in a sense, “owning” your actions (in your sense, in a more metaphorical, imprecise, sense). Owning your body gives you teh right to control your actions–and what is ownership, after all, but the right to control? But see how it derives from–is merely a consequence of–owning your body?

But the finer points of intellectual property rights is the question of exclusivity to the reproduction of one’s creations. I do own my own labor, but I may not necessarily have the right to assert exclusive rights to the reproduction of that labor. It has to be something unique, and something of productive effort where either prior costs are associated with coming up with that unique idea and can be implemented as a tangible product or service.

I have to say this does not even seem like an argument to me. It’s just a bunch of assertions. What is uniqueness, and who says it has to be unique? Etc.

So for example if I come up with an idea of Star Wars and make the movie, I have exclusive rights to the reproduction of that because if I didn’t, it would rob me of the benefit of coming with a unique creation.

Do you realize that copyright is not just the right to reproduce? First, it’s not just literal reproduction; otherwise minor changes woudl be enough. So it is broader than that. And how to define this is inherently arbitrary and NON-objective. Second, it includes other rights, such as derivative rights, the rights to perform, or “digitally” broadcast. How any objective system of law would include these ad hoc, arbitrary, state-determined rights is beyond me. I don’t trust the state, you see, that mass-murdering mafia, so don’t put much stock in the reasons of those guys in coming up with a patent system–the same thugs who give us income tax and the Americans with Disabilities ACt and Affirmative Action and the Civil Rights act and pro-union legislation and prohibition.

We ought to reward creative efforts, not rob people of them.

Maybe the state ought to give them a tax-funded award, if the government-granted monopoly is not sufficient.

Stephan wrote:

The fact that your action can be “traded” does not imply you own it.

Of course it does imply that!! If it’s not yours you can’t assert a right to trade it.

This is realy not that hard to understand, John. You own your body; you can decide what to do wiht it. You can use this power to make a bargain. This is really not that complicated. Your assertion that this means you “own” the action you perform to induce someone to pay you is just an assertion.
Let me try one more example. Suppose I know the CEO of Dell, and you ask me to use my “influence” with him to persuade him to consider you as a battery supplier. You agree to pay me $10k if I’m successful in arranging a meeting. So, I put in a good word for you with Michael Dell, and sure enough, he agrees to meet with you. You dutifully pay me the $10k. Now: did I “own” my “influence” over Michael Dell?

Jon Trager wrote:

It still seems absurd to me. What, *in essence*, does a patent lawyer do? He argues for legal titles to intellectual property on behalf of his clients, no? If I’m wrong about this, I’d appreciate a correction. If I’m right, then Stephen’s chosen work, the central purpose of his life, *by his own argument* primarily consists of helping some individuals violate the rights of others by gaining or keeping legal titles that he views as wrong (under his utilitarian analysis). If that’s true, it’s not just absurd; it’s also immoral.

Jon you make a good point. I was about to defend Stephan on this one by saying he wouldn’t be a moral hypocrite if he was defending clients against an accusation of IP infringement because he doesn’t agree in their legitimate existence, however it seems as he has said he also helps people file patents.

Stephan said:

Even if you oppose patents, there is nothing necessarily wrong with obtaining them–like guns, they can be used for good or for evil.

To third party observers, if you find this statement absurd you should. He thinks there is no such thing as intellectual property rights and as such, it would have to mean it is immoral to assert a right over your own creation, yet helps people do just that.

I think IP is not justified, not that it “does not exist.” I think the patent system is unjustified. That does not mean obtaining a patent is immoral. It is arguably immoral to sue someone for patent infringement, but merely having a patent is not a rights violation–any more than having copyrights is (we all have copyrights in our individaul contributions to this very thread; that does not make us aggressors).

He equates this with the ownership of guns but the difference is he thinks the idea of intellectual property rights are intrinsically bad, while guns on the other hand are conditionally bad.

So I think it should be obvious Stephan is a moral hypocrite, however his hypocrisy is not important to the issue of whether intellectual property rights are a valid philosophical concept or not.

Stephan wrote:

John. Please tell me how you “copyright” something? When people say “copyright” as a verb, they say it b/c they mistakenly think that the coypright system is a registration based one…

You are confusing yourself Stephan. I made no mention of how copyrights legally work. As a verb to copyright something means to assert your exclusive rights over the reproductions of your creation

. No, it doesn’t. This is a unique usage. When you assert your rights, it means to sue someone, or demand payment. No one calls suing someone for copyright infringement “copyrighting” anything!

The fact that the federal government automatically copyrights our creations on our behalf doesn’t negate the use of the word as a verb, for the very fact the government “copyrights our creations for us” means asserting the exclusive rights to the reproductions of our creations and is thus also used as a verb.

Well, as an anarchist, I DO favor scrapipng the current judicial system.

As an anarchist you would have to be in favor of NO judicial system, not just our current one.

This is untrue.
Jon Trager:

Stephen: “Patent attorneys do many things. One thing is to advise clients on their legal rights. Another might be to file for patent applications–to help obtain patents. Another might be to defend them in litigation, or to help them sue a patent infringer.”

I think all of those concretes may be included in the wider category of trying to secure legal titles to intellectual property, which I said was the *essence* of being a patent lawyer.

Stephan: “Even if you oppose patents, there is nothing necessarily wrong with obtaining them–like guns, they can be used for good or for evil.”

Not exactly: it’s that there are no natural rights to patents, so the patent system is unjustified. Just like public roads are–do you drive on these?

So how is there nothing necessarily wrong with helping other people get the state to protect work that you think shouldn’t be state-protected?

Because having this right does not mean you are using it against anyone–same with copyright. All of us here have lots of copyrights. That’s not our fault.

Stephan: “It’s not true, as I noted above. Obtaining a patent is not violating rights. Nor is using one as a counterclaim (defensively). Only suing an innocent person is arguably rights-violating.”

A patent is *essentially* an exclusive right granted by the government to make and sell an invention for a certain time period, right? If so, what happens when someone violates the government-granted right you helped obtain for a client? You sue them, don’t you?

YOu don’t have to. And usually, no. As I said, most patents are obtained for defnesive purposes. If I were to sue a competitor, it woudl cost millions, and they might have their own patents, or buy some, to sue me back, and maybe win. It’s more of a porcupine thing for most companies: they have them just to make competitors afraid to sue each other. So you have billions of dollars spent just to keep others from using their patents against you, so you have freedom to operate, to compete in the market. A cheaper way to achieve this woudl be to not grant patnets.

In other words, you attempt to *force* other people to pay money for doing something you don’t really believe is immoral, correct?

This is not what obtaining a patent does, any more than it’s what having a copyright does. Moreover, if you don’t file a patent, some competitor might file for the same thing even though they invent it later, and sue you and stop you from doing what you invented first. So it’s a virtual necessity, sort of like hiring a tax attorney if you’re wealthy. Whether it’s immoral to sue someone first, is a separate issue, but first, that’s teh client’s decision; and second, that’s not necessarily what’s involved in obtaining patents.

BTW patents are only about 10% or less of my current practice anyway, thank God.

If I’m wrong, please tell me how. I don’t believe I am.

Yes, like most libertarians with a strong position on IP, you don’t seem to understand how the system you seem to be in favor of really works.

***

John Armaos:

John, we are indeed going in circles, in my view b/c either of your distortion of my views or my inability to explain some (important as I see it) subtleties to you. So just a few replies:

Owning your body *is*, in a sense, “owning” your actions

And that’s what I’ve said over and over again.

But I am emphaiszing it’s just a consequence of self-ownership. I emphasize this b/c of the danger–which you give great examples of–of others distorting the idea of “owning labor” into justifying IP and other ridiculous notions.

I originally wrote:

[Stephan] thinks there is no such thing as intellectual property rights

You responded:

I think IP is not justified, not that it “does not exist.”

That’s what I mean. You don’t think they are a legitimate concept.

Sure, it’s a legitimate concept. Patent and copyright are current positive rights. Call them intellectual property rights if you want. (I prefer “pattern privileges.”) But that does not mean such rights are justified.

But you have no problem living your life pretending that they are legitimate.

I don’t pretend they are legitimate. I declaim them as unjust all the time. What are you talking about?

Sounds like rationalizing to me. The very act of filing a patent for someone as Jon Trager points out: “A patent is *essentially* an exclusive right granted by the government to make and sell an invention for a certain time period, right? If so, what happens when someone violates the government-granted right you helped obtain for a client?”

The fact remains you are helping someone assert what you think is an illegitimate right.

Helping someone obtain a patent is not helping them assert it. They aer different things. Again, this is not that hard to comprehend. And asserting an “illegitimate right” is not always immoral–if you sue me for infringing your patents, you can be goddamned sure I’ll sue you back for infringing mine, and there is nothing wrong with this. Why? Because by suing me, you become an aggressor. It is okay for me to hit you back with the state force implicit in a patent monopoly b/c that is defensive. Objectivists recognize the distinction between offensive and defensive force.

That is the definition of moral hypocrisy.

Why do you people always resort to this illegitimate argument? Waht is the *relevance( of my moral hypoccisy to whether or not IP is legitimate? Say I am a hypocrite. How does that prove IP is legitimate, or taht my criticisms are flawed?

Stephan:

John. Please tell me how you “copyright” something? ….Yes, to “copyright” something does mean to “secure a copyright on”-

Which shows Stephan agrees it can be used as a verb. He goes on to say to my definition of copyright, that being asserting one has exclusive rights to the reproduction of their own creations:

This is a unique usage. When you assert your rights, it means to sue someone, or demand payment. No one calls suing someone for copyright infringement “copyrighting” anything!

I mean when the federal government automatically copyrights our own creations for us, they are doing so as an agent acting on our own behalf.

“I’m from the federal government, and I’m here to help you.” Glad you are so trusting of the leviathan state. I’m not.

Stephan:

Thanks for confirming my suspicions.

The way I conceive it, just b/c language puts a possessive “your” on something does not mean it’s really an ownable piece of property. I have memories of my childhood; I have love for my wife; I don’t “own” these things,

Of course you own those things Stephan. If they are yours, you own them. That’s what having something be yours means.

I just don’t know how to respond to such views.

I’m narrowly defining owning an action for the purpose of trade only in these discussions, not just any arbitrary action or thought. Like thinking “Gee, the weather is nice today” that thought isn’t of any productive value, no services or products were produced from a whimsical though like that.

I specifically mean action for the sake of an exchange. Like a doctor trading his services for money in return from his patient. So your memories of childhood should not be construed to mean the same thing as owning your labor. Your memories are not something that can be traded in the sense that they are immaterial objects, unless we are discussing you writing a book about them, or being paid to talk about them in lecture halls. Then it is your right to do that, and you can claim ownership to that labor.

Gee, thanks for clearing that up. What a coherent theory of ownership.

***

John, “You see Stephan, the problem that arises a lot here is you simply don’t understand the English language which makes me wonder if it is your second language. Legitimate here means justified. Get it? And the fact that you are willing to promulgate something that you feel is unjustified makes you a moral hypocrite by an definition of the word.”

John, you were talking about whether the *concept* of intellectual property is “legitimate”. Now, I don’t know of any “illegitimate” concept, but even if there are some, “intellectual property” is a useful concept, just as is aggression, murder, rape, and robbery. The fact that these are legitimate concepts does not mean that their referents are legitimate actions or practices. See the difference?

I don’t “promulgate” the patent system, if you’ve noticed.

***

John Armaos:

I wrote: I mean when the federal government automatically copyrights our own creations for us, they are doing so as an agent acting on our own behalf.

You respond:

“I’m from the federal government, and I’m here to help you.” Glad you are so trusting of the leviathan state. I’m not.

For crying out loud Stephan! I didn’t say anything about trusting the federal government or saying they ought to automatically grant us copyrights. I wasn’t making an “ought” statement I was making an “is” statement, meaning that is what the government does, not that it’s what it should do.

Oh, good. I took your statement that they are acting on “our behalf” as endorsing it.

How can you think IP is a useful concept when you think it’s an invalid one? That makes zero sense.

I don’t think the concept is “invalid.” Any more than the concept of murder is invalid. It is murder itself that is unjustifed, but not the concept for murder. Having a concept for murder, and aggression, is very useful, wouldn’t you agree? And it’s coherent, and legitimate.

The fact that these are legitimate concepts does not mean that their referents are legitimate actions or practices. See the difference?

Absolutely. Which is what I’ve said so many times in this thread when I said just because the way the current legal systems applies the concept of intellectual property rights in a flawed way doesn’t mean they are not a valid or flawed philosophical concept.

IP is a fine concept. IP as a system is unjust–all types of IP.

I don’t “promulgate” the patent system, if you’ve noticed

You sure as hell do in practice. You file patents for your clients, what more needs to be said?

That’s not “promulgating” the patent system. As I explained, it’s helping clients protect themselves from a type of aggression whioh YOU, not me, endorse.

You are a moral hypocrite.

And you just favor aggression, that’s much better, right?

You don’t think intellectual property rights are valid rights, but you have no problem with taking action to defend someone’s intellectual property rights.

First, obtaining a patent is not “defending” IP rights. Second, don’t you agree w/ Rand that we have no obligation to be martyrs?

If you really want to abolish the recognition of intellectual property rights, you should stop helping people defend their assertion to an intellectual property right.

You guys would love that–the people in some sense in the best position to mount an attack on the system–those who know about it–are the ones uanble to attack it–jsut like the NAACP attacks Clarence Thomas as an Uncle Tom for opposing Affirmative Action since he “benefited” from it. I see.

If you disagree with slavery but you were a slave-owner, you don’t think you would be a hypocrite?

Probably, but owning a slave is wrong. Owning a patent is not–it’s enforcing it against an innocent victim that is wrong. Owning a patent (GIVEN a society in which there IS an (unjust) patent system) is like having a gun. IT can be used for good, or for evil.

You are just resorting to ad hominem and distraction now. None of this thrashing around justifies IP. The fact taht you can find an IP lawyer who dislikes IP law does not show that IP is justified. It’s really not all *about me*, John–I’m really not that important, in the grand scheme of things, not that I’m not flattered.

***

John A:

I don’t think [intellectual property] is “invalid.” Any more than the concept of murder is invalid.

?????????

The *concept* is a valid concept–it accurately identifies somethign in reality–namely, IP laws.

Probably, but owning a slave is wrong. Owning a patent is not-

??????????

*owning* a patent is *having a power to harm* others. Just like owning a gun is having a power to do this. What is wrong is to shoot an innocent person, or sue an innocent person for patent infringement–to *assert* your illegitimate state-granted rights.

Then for pete’s sake Stephan, why have you made every effort to deny that we have a right to intellectual property?

? B/c there is no such right. There are legal rights to IP, of course, but this is unjustified.
Dwyer:

Stephan and Phil,

Regarding anarchy, what if I decide to enforce a patent law against an innocent person, and you, believing this to be a violation of the person’s rights, undertake to stop me. Are you not acting as a government by preventing me from enforcing my own version of justice?

I don’t undersatnd your question. In anarchy there could be no patent rights in the first place, since there is no state or legislature. But I would say that in today’s society, if A sues B (presumably innocent) for patent infringement, A is using the state to violate B’s rights. Whether B should use force to defend himself is a prudential question.

Dennis Hardin:

Stephan is a patent attorney who does not believe in the legitimacy of patents. He defends this

? What is there to “defend”? I reject the idea that there is anything to defend. The notion that i have to defend presupposes that there is something wrong with this, which I deny.

by saying that “the people in some sense in the best position to mount an attack on the system–those who know about it—“ should properly work in a field they regard as illegitimate as a way of undermining it. Sort of like a pastor who decides he is an atheist but still wants to work within the church.

More like the tax lawyer who opposes income tax and works to help his clients navigate the unjust tax system.

Stephan says: “Owning a patent is not [wrong]–it’s enforcing it against an innocent victim that is wrong “ In other words, it’s fine to “own” a patent as long as you never make use of it—as long as you let everyone usurp your so-called “intellectual property” with impunity.

Actually, it’s okay to use it defensively. But look, all of us have innumerable unjust state-granted positive rights–rights to apply for welfare, to sue for racial or gender or ethnic/religious discrimination, to sue for copyright infringement etc. And in any society, we all possess the power to attack innocent people–to become criminals. Having a power, or capacity, to do something wrong, is not doing it.

It’s fine for Stephan to charge an attorney’s fee for providing clients with something he regards as immoral to use.

? It’s not always immoral to use it. Again: most patents are defensive. One purpose they serve is to definitely publicize and idea, so that other companies can’t get a patent on the same idea and shut me down. Another is to deter others from suing me for violating their patents. What is wrong with that?

Yet we are supposed to carefully consider the arguments of someone who earns his living by taking money in exchange for legal services he sees as inherently worthless.

My legal services are not “inherently” worthless; *given* the unjust patent system, people need patent attorneys to help them deal with it. Just like, given a tax system, you will need tax attorneys. They are providing a valuable service *given the existence of* the tax system; but in an idael world, there woudl be no patent, or tax, system, and no need for patent or tax attorneys. What is a drain on society are the tax laws and patent laws, NOT the service-providers who inevitable arise in response to such unjust systems.

Martyrdom is not the price of integrity, Stephan. On the contrary, integrity is a precondition of successful living. Living a lie is the essence of self-immolation.
And it makes your arguments come across like the ravings of a drunk in the village square.

Oh for God’s sake, you guys really are seriosos. I am not living a lie–I like helping arm companies with patent arsenals they can use to defend themselves from unjust lawsuits, just like I imagine anti-tax tax attorneys get some pleasure from helping clients avoid taxes; and like anti-cancer cancer doctors like to help people fight cancer.

Furthermore, you seem to think all IP lawyers do is “help people assert patents”. This is not true. They do all sorts of innocent and innocuous, beneficial thigns–transactions, agreements, licenses, review, opinions, searches, advice, etc. Plus non-IP law, like corporate, contract, etc. There is no necessity to violate rights, just b/c you are a patent lawyer.

***

Bill:

I asked Stephan, “Regarding anarchy, what if I decide to enforce a patent law against an innocent person, and you, believing this to be a violation of the person’s rights, undertake to stop me. Are you not acting as a government by preventing me from enforcing my own version of justice?”

He replied, “I don’t undersatnd your question. In anarchy there could be no patent rights in the first place, since there is no state or legislature.”

Huh? So, are you saying that under anarchy there would be no rights of any kind, because there is no state or legislature to enforce them?

No, of course not. There are rights always. The quesiton is are there *legal* (positive) rights–that is, actually enforced and respected versions of natural rights, in a given society. In today’s society, positive rights mirror natural rights only imperfectly–I’m sure you would agree. There is overlap, but it’s far from being a close fit, as it would be ideally. In a free society with no state, you remove one major source of the deviation–public or institutional criminality. But sure, natural rights would to some approximation be respected in a free society. However, it is not conceivable that the arbitrary, statist, decreed, legislated laws and rights that exist today (like the Americans with Disabilities Act, say) would exist in a free society. Some laws and rights can only arise by being *legislated*. In a free scoiety, there are decentralized courts, but no private “legislature”; the idea makes no sense. I view patent rights as a type of legislated right that could not arise naturally, organicaly, without decree by a centralized state.

Suppose I tried to prevent you from stealing my invention. In other words, suppose I tried to stop you from marketing it without my permission.

Let’s be clear: your hypos is this: suppose you tried to trespass against me and my property, to stop me from using it as I see fit, because you think you have a partial ownership claim over my property, due to your thinking of a useful way to use your property. I.e., you want to use force to stop me from, say, tuning my fuel injector on my car, with my hands and tools, sitting in my driveway–because of your delusion that you have some claim over my property because you filed a document with some “invention claim company” that said you were the first to think of that way of adjusting a fuel injector?

In this case, of cousre, you are simply a nut who wants to invade the borders of my property. You would be dealt with the same as any nut or criminal.

If, instead of trying to physically stop me or take my property, you filed some lawsuit, everyone would laugh at you and it would instantly be dismissed–just as it would if you filed a claim in a private court system trying to sue me for racial discrimination or for failing to have 4 handicapped parking spots in my own parking lot.

No, it would be acting as my agent. It’s just doing what I have a right to do–to use force to defend my property. As Rand herself held, defensive force is justifiable. It is not initiated force. Merely using force against a loony criminal is not being “a government.” It is certainly not being a state, which is what anarchist oppose. “Government” is ambiguous. We oppose the state: that is, the agency of institutionalized aggression.

***

Trager:

Stephan: “Not exactly: it’s that there are no natural rights to patents, so the patent system is unjustified. Just like public roads are–do you drive on these?”

Of course. I have no other choice if I want to go places. Do you have no other choice if you want to earn money to support yourself and your family than to be a patent lawyer?

As I have noted, there is nothing inherently wrong w/ being a patent lawyer. It does not mean asserting patents against anyone. This is only one of many things a patent lawyer can do–95% of them legitimate. I don’t do the 5%–patent enforcement/assertion/litigation.

Stephan: “Because having this right [a patent] does not mean you are using it against anyone–same with copyright. All of us here have lots of copyrights. That’s not our fault.”

Stephan, this is absurd. What’s the point of getting a state-granted patent if not to be able to enforce a legal claim *in the event* that the patent is violated??

I’ve explained this many times. It’s primarily defensive–to assert in a counterclaim against someone who is suing YOU for patent infringement. This is NOT wrong, since it’s defensive force.

Whether or not most people *actually* violate patents is irrelevant. The fact is that a patent is literally worthless without the government force to back it up?? By your utilitarian moral analysis, such force would be unjust in this context,

No, only if asserted against innocent victims. Not if asserted as a counterclaim against someone threatening to sue me for patent infringement.

Stephan: “BTW patents are only about 10% or less of my current practice anyway, thank God.”

Good. Then you wouldn’t lose much of your income from giving that up and having integrity.

10% of my job is patent related, and this patent practice falls in the 95% part of patent law that is legitimate. I don’t do patent litigation, and if I did, it would be defense.

Stephan: “Yes, like most libertarians with a strong position on IP, you don’t seem to understand how the system you seem to be in favor of really works.”

Do I have a technical understanding of the procedural details of the US patent system? No, although I used to talk about it with a friend of mine who was previously a patent examiner, so I probably know more about it than most people. Do I have a general understanding of the essential nature of intellectual property protection? Yes. This conversation isn’t about the current US patent system; it’s about state-granted patents *per se*. You shouldn’t conflate the two.

This makes you guys slippery: if I criticize various features of the current system as unjust, you crawfish out of it and say that you don’t favor that. When I ask you waht the hell you DO favor, you fudge and say that you are not an expert. Sounds a lot like the way theists argue about “God”.

***

Armaos: “But you still help people file a patent and you don’t know what your client will do in the future with that patent.”

actually, I do, since I only have one client–the one I work for. I control all that.

“You do realize your client today may not be your client in the future? Do you ask your clients what is your intent with filing a patent? Can you stipulate the patent will only be used in a way that you morally sanction?”

If you sell someone a gun, do you have to make them “stipulate” they will only use it for good? Dude, we live by right, not by permission.

***

Armaos:

If you sell someone a gun, do you have to make them “stipulate” they will only use it for good?

Difference is using a gun for evil purposes is already against the law. Using a patent for what you deem to be evil purposes is not against the law.

This is irrelevant. It’s also not against the law to sue someone for discrimination, though it is immoral and a violation of rights. Yet if I sell you a computer, it’s not my fault if you use it to draft the pleadings for such a lawsuit.

Keep rationalizing to yourself there buddy.

It’s not a rationalization; I think you are just kind of ignorant of the way patent lawyers practice and interface with clients.

Armaos: “But you still help people file a patent and you don’t know what your client will do in the future with that patent.”

actually, I do, since I only have one client–the one I work for. I control all that.

So you won’t take any action against me if I start up a company of my own using an identical company name to your client’s company name, logo and inventions etc?

Nah, I have other things on my plate.

***

Armaos: no, I won’t sue you. BUt I think you are pettifogging. The issue is whether IP is justified. Whehter or not I’m a hypocrite is irrelevant to this issue. these are deflections.

Dwyer:

I asked Stephan, “Suppose I tried to prevent you from stealing my invention. In other words, suppose I tried to stop you from marketing it without my permission.” He replied,

Let’s be clear: your hypos is this: suppose you tried to trespass against me and my property, to stop me from using it as I see fit, because you think you have a partial ownership claim over my property, due to your thinking of a useful way to use your property.

What I had in mind is this: I offer you the right to my invention for your own personal use at a mutually agreed-upon price, but under the terms of our agreement, deny you the right to market it for your own profit. But you break the agreement and proceed to sell my invention at a profit.

Well, in this case, it’s not “stealing,” it’s breach of contract. And in this case, sure, you could sue me for damages. Sure. Because of a contract, not b/c there is any such thing as “intellectual property.”

So, I get my defense agency to arrest you for marketing my invention without my permission.

Well, I doubt such contract breach would be regarded as a crime subject to arrest and punishment; it would probably be a civil action, a suit for damages, like any breach of contract.

But since you don’t agree that I have any right to demand that you not profit off my invention,

But I do agree that you ahve this right, since we had a contract.

I think you are just trying to find a hole in anarchy, not in the opposition to IP. Look, I’ve addressed the issue of trying to base IP on contract, in detail, see pp. 33-41 of Against Intellectual Property.

***

One note: previously I hypothesized that Rand justified first-to-file b/c she mistakenly believed this was the US approach, and thus liked it or assumed it was right, or tried to justify it. I just realized that in another, older thread here, I noted another time she did something similar: “I have it on good authority that Murray Rothbard’s correspondence indicates that around 1954, Herb Cornuelle convinced Ayn Rand to oppose eminent domain; she had peviously favored eminent domain because the Constitution (apparently) implicitly authorized it.”

Interesting.

***

Letendre, “In previous discussions you have asserted that “holding a monopoly on the use of retaliatory force” is non-essential, and that all that matters is that government hold a monopoly on writing the rules for the use of retaliatory force.”

I confess, when I make an error, I am usually confused about whether it’s the Floating Abstraction fallacy, the Stolen Concept Fallacy, or the Fallacy of Definition by Non-Essentials. What are the other buzzwords, catchphrases, and “bromides” these guys bandy about?

***

Ed: “You’re setting up a Straw Man here. For instance, you’re making the Founding Fathers — folks who discovered that humans have individual rights against their own governments (and that only the Objective Rule of Law will ever protect for that) — you’re making these founding folks out to be “a group of organized thugs.” Yeah, sure, when the very Founding Fathers are thugs … anything goes! But the Founding Fathers weren’t organized thugs, they were organized reasoners (with some rifles).

Yes, they used muscle (against mother England) in order to implement this country — but they used the mind first (and only then implemented the mind’s solutions with their muscles). It was one of the very first times in human history where right beat might (i.e., where “might makes right” didn’t hold — because it doesn’t have to!).”

Of course there is nothing wrong w/ using force (muscle) to protect one’s rights. But the Founding Fathers were not some gods. They didn’t “discover” that we had rights. They were political animals like all Congress-critters (in L. Neil Smith’s felicitous phrasing). As for might-makes-right, they set up a flawed Constitution, via a coup d’etat, that was bound to devolve, via democracy and centralization, into the leviathan state we have now–as it has. They set up a state that left women and blacks to suffer as sub-humans. They destroyed a monarchist hierarchy in their naive utopianism that might have saved us from what has happened. In their war against the mother country, the conscripted soldiers, and shot deserters. Right beating might, eh? From the get-go, it was flawed, and destined to be, as all states are.

***

John Armaos:

“Stephan I noticed you’ve dodged my question twice now. Should I take your silence to mean your client doesn’t know your philosophical view on intellectual property rights? Would you mind if I told your client that you would not take action to protect their intellectual property? Because I can only think of three possible explanations for the facts here:

1) You are lying and would act to protect your client if I started using your client’s intellectual property. Which means you’re just a hypocrite.

2) You are telling the truth and your client doesn’t know your position, which would mean you are committing a fraud against your client.

3) You are telling the truth and your client already has knowledge of your philosophical position (which is hard for me to believe) then you wouldn’t mind if I asked your client if he knew.”

Tibor Machan: “It is sad that so much of this discussion includes endless ad hominem attacks. Seems to reinforce the impression some folks have of Objectivists, namely, that they are reluctant to keep personal attacks out of intellectual disputes. Of course, disputants can have moral flaws but that is irrelevant to whether their arguments are sound and a forum such as this one is supposed to address the latter point, not the former.”

NSK:

John, I don’t care to engage any further with you on pointless personal or meta-issues, thread-hijacks or derailing, sidetracking or deflecting. This post was about Tibor’s article, which was about intellectual property and its legitimacy. I disagree with Tibor but for sincere reasons, and his argument is reasonable too. You guys have turned this into an inquisition on my job and anarchy and libertarianism. And you seem unable to discuss this civilly without getting threatened or upset when I make substantive points that are contrary to established or received Objectivist wisdom. Is this a discusion thread or not?

If you want a thread about Stephan Kinsella’s personal career, uh, start one. I would be happy to discuss rights theory, or anarcho-libertarianism, on the appropriate forum/thread. This is about intellectual property.

***

Armaos:

Machan I’m not using ad hominem attacks. Hypocrisy and fraud are not ad hominem arguments especially if they are true.

In any event, they are if nothing else *irrelevant*. The question is whether IP is justified, not whether I am a hypocrite. In fact, from your point of view, I am heroic, b/c I help defend and secure intellectual property for American corporations–why do my private thoughts detract from this heroic effort? Aren’t you being a hypocrite for not worshipping my heroism?! (I’m joshing here, people, relax.)

I even stated Stephan’s hypocrisy does not validate or invalidate his arguments on intellectual property. Did you miss that post where I stated this?

I missed it, but good.

If anything Stephan has been guilty of ad hominem attacks by initially attacking my college education and presuming liberal arts majors can’t make coherent arguments.

Actually, I had no idea what your education was, and was only joking anyway. Plus, I apologized when you kept complaining.

Should Stephan have the impression Objectivists are more interested in personal attacks, I should think I should legitimately get the impression anarchists are only interested in personal attacks.

Look: bygones, okay? My feelings are not hurt. But I’m really just interested in the issues and truth and justice.

Armaos, your continual questions about my way of grappling with my career and trying to stay true to my political views — I don’t think this is the right forum. Maybe such a discussion could be interesting–how does one live morally in an unfree world, etc.–but why would it focus on me, just b/c I have the temerity to disagree with most of my fellow patent lawyers?

Dwyer:

Just to understand your basic position, you’re saying that if a drug company puts million of dollars into researching and developing a drug, another drug company, who did not put any money into its research and development, should have the same right to produce and sell the drug at a profit as the original company? Is this correct?

Sure, as long as they didn’t commit theft to obtain the information and are not under any kind of contractual obligation not to do this. But who know what cartels or inter-company agreements would exist in a free market?

Ed: apology accepted. I think we all ought to try (me too) to just be civil and have a nice discussion without assuming ill-will or stupidity etc. We are all libertarians here, after all. (I kid, I kid 🙂

***

Trager: “So Dr. Machan, in your opinion, it’s *never* appropriate for a person to point out any perceived hypocrisy? Even if that person is *not* using it as the basis for attempting to invalidate another person’s argument (which, as I pointed out, is the context here)? I certainly disagree with that idea.”

I’ll respond to part of this, b/c there is an aspect I find interesting, though it is off-topic so a bit sidetracking (but not personal). I have noticed this kind of tactic is often used in political campaigns: Obama will say, “I wish Hillay Clinton would really denounce XYZ.” Now he is basically saying that she is a hypocrite if she does not; but it’s funny, because why does he want her to denounce XYZ–does he want her to be more like him, and be a better candidate? Etc.

Other times, hypocrisy is pointed out, but the goal is to persuade listeners that the person so accused is *dishonest*–so don’t vote for him.

My point is, I suppose you can point out hypocrisy if it’s relevant. But I’m not sure why or how it’s relevant in a discussion like this. Suppose I am a patent atty and patents should be abolished; you say, “aren’t you being a hypocrite”? Now, maybe I am, but what is the relevance of this? Are you politely asking if I’m lying about what I am in favor of? But then, is the issue here really whether I’m telling the truth about opposing IP? No, not realy. In fact this was about Tibor’s views, and whether they make sense. The only way I could think it could be relevant in this context, would be if you argued that if Stephan Kinsella practices IP law, that proves it’s legitimate; and therefore, to deny it, is self-contradictory or something. But how does my practicing IP prove that it’s legitimate? At most, it could prove that Kinsella himself *believes* it’s legitimate (demonstrated preference or something); but how does the fact that I (apparently) believe something to be justified, mean that it *is*? Etc.

***

Luke:

I consider looking at deeper motives behind arguments quite appropriate as I observed in my article “Questions and Motives” years ago.

Because discussions like this consume so much time, and so frequently involve sophistry, one really has to ask whether a troublesome participant argues in “good faith” or has ulterior, malevolent motives.

So I do not consider accusations of fraud and hypocrisy at all out of place in this forum.

I don’t know how I feel about this as a general matter; I don’t find it that interesting of a question nor one that lends itself to some rigorous analysis… it seems to me that basic rules of civility and courtesy apply, and this is more of an art than a science. But in any case, Tibor posted a thoughtful article on IP; and I tried to comment sincerely and thoughtfully on it. Anyone who thinks that I’ve been “troublesome” or that I have “malevolent motives”–well, let’s just say I disagree, and am not sure it’s worth even debating the matter with such a person. Anyone making this assertion will have to suffer the judgment of their peers–i.e., they’ll lose credibility.

Dennis:

Ad hominem is an inappropriate argument when it involves a fallacy of relevance. ï¿½You once smoked crack so nothing you say could have any validity.ï¿½

In Stephanï¿½s case, his work is obviously relevant because it clearly implies a lack of genuine conviction.

But this is really not “about me”; if it were, I could go into the internal details of my life and career, were that not so boring and beside the point. It would take a bit more sophistocated understanding of the practice of law and in particular IP law for laymen to even understand the nuances and my “defense,” as it were–if I were on trial.

If anything, to be honest, I could try the opposite tactic–using my authority as IP attorney as part of my argument–that I know more about it than you laymen, so just trust me. I could try to talk over your heads, use inside jargon, etc. I could try to act superior as if I’m better-qualified to opine on these matters, *because* of my experience. But I do not, and indeed to not think any of these things is valid or true. I think your average thinking person is as “qualified” as me and I try to explain things in normal terms where possible, etc. So here I am, arguing in a fair manner, giving my sincere views and trying to discuss an important and interesting issue fairly and rationally, and not resting on my status as IP attorney becaues that could be an illegitimate debating tactic… and then I get accused of the opposite, of being a fraud for not mentioning it loudly enough, or of being a hypocrite for having dissenting opinions about something I know a lot about, blah blah blah. It’s so distracting and tiresome, and pointless. And it’s not the way we would talk to each other at a dinner or cocktail party. Come on.

John:

Why is it not acceptable to you when a rival company commits theft to obtain a design of a drug when those two drug companies don’t have a contract with each other?

Because as a libertarian, indeed as a pro-civilization person, I oppose theft, which is to say, I favor institutionalized respect for property rights. If A breaks into B’s building to learn A’s secrets, it is committing trespass, and ought to be punished. One thing taken into account in punishing is of course the harmful consequences to the victim. Sure.

But it is acceptable that a drug company can stipulate with the sale of every drug that the design of that drug cannot be reproduced, so in essence no other drug company could possibly get the design for that drug without either violating a contract, because afterall how can the rival drug company obtain a copy of the drug without first buying the drug from the rival drug company and thus must abide by the stipulations of that contract, or else simply break into a store or the company’s factory and steal a copy of the drug.

The difficulty here is ensnaring third parties. I believe that to assume the third party is necessarily caught in this web of contracts, you have to presuppose information is ownable, which is question-begging. I explain this in detail in Against Intellectual Property, pp. 33-41. Let’s take a concrete example. Suppose A sells his drug to B, with every contractual stipulation you can think of. B is not permitted to tell anyone about the drug, or let anyone see it or use it unless that person also signs a similar agreement, etc. Okay? fine. But what if B *violates the contract*? Let’s say B erects a billboard on his lawn that displays the formula for the drug. B’s neighbor, see, from his own house, sees the information on the billboard, and thus now knows how to make a drug that does certain useful things. So he starts making this drug, and selling it, cutting into A’s market share. Yes, yes, A can sue B for damages. But can A sue C? On what grounds? What did C do? C never saw the drugs B possessed, never used them, never touched them. There is no possible argument that he was holding “A”‘s property without A’s consent, so he can be ensnared. In this case, C only got knowledge, and he got it by doing nothing illegal or rights violative; he merely peered out of his own window, and saw information displayed in a billboard on his neighbor’s lawn.

Should C now be forced not to act on information he has in his head? Why? On what basis? The only way to argue this is to say that *information* itself — ideas, patterns of information, recipes, designs, whatever — is property. I think this is obviously pernicious, but in any case, it is the question here, so to assume it is question-begging.

Either way through just an added stipulation to a contract, and the recognition that outright theft of a tangible product is banned with or without a contract, we have a de facto recognition of intellectual property rights.

This is not correct, again, as I explain in detail in the paper noted above.

So how can a rival drug company under Stephan’s view of jurisprudence, lawfully reproduce their competitor’s drug? They would either have to break the conditions of a contract when buying the drug product, or they would have to resort to theft to obtain the drug product in order to reproduce it.

Why do you assume this? All the competitor needs is *information*. They need not ever obtain a sample of the first company’s product to be able to recreate it. In fact, information about the drug is publicly avialable–part of the FDA process etc. In a free market surely it would be publicly available so doctors and certifying agencies could inspect it and verify its safety, efficacy, etc. Even if it’s secret, the purpose of the drug is known–what it does. If the competitor reverse engineers it, and comes up w/ basically the same compound as the first one did, to produce the desired effect, they are STOPPED today by patent law. Why should they be, esp. if they independently invent it?

Dennis:

And it certainly is not hypocrisy for a CPA to use his expertise to minimize his clientï¿½s losses. Both the CPA and taxpayer are acting consistently with their principles. No one has a choice about whether to pay taxes. Seeking patents is optional, as is the legal work to make it happen. A patent attorney is not helping clients minimize the damage done by a law neither of them likes; he is actively helping clients get the maximum benefit from a law both are free to disregard if they so choose.

If you do not apply for a patent, there are at least two risks. First, a competitor could later file a patent on this and shut you down. Second, you are relatively defenseless if a competitor sues you for infringing its patents. Applying for a patent is a very good way of preventing others from obtaining a patent on the same idea, later. So that is purely defensive. Second, if you obtain an arsenal of patents, it makes others afraid to sue you. They are VERY defensive in nature. Given that the system allows your competitors to obtain patents, it would be self-sacrificial to not obtain your own for defensive purposes.

I must say I am a bit flabbergasted most of my critics here seem unable to grasp this point. Any typical businessperson would have no trouble grasping this argument.

***

Incidentally, to be clear, I agree w/ the 4 main tenets of Objectivism–

So if that makes me an Objectivist, I am one. I also view IP a bit like Rand viewed animal rights. She loved her cat, and said, IIRC, she would love to find a way to justify rights for it, but just couldn’t. Likewise for IP, for me. I have every reason to be open to an argument that IP is justified. I searched for it for years. I have come down against it despite being biased against this.

BTW here’s an interesting note to me from a fellow patent attorney–a senior partner in the patent department of a major national law firm, not even a libertarian; here were his/her honest observations based on his/her long experience in the field:

Stephan, Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hosteny] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t.

I do: scrap the system, and let people compete using only real property rights.

***

Dwyer:

Probably the thing that gives me greatest pause when it comes to rejecting intellectual property rights is that the physical product is less important than the idea behind it.

If Rand writes a novel, what is it exactly that she “produced.” Is it only physical marks on paper? Or is it the story itself, which is not a physical thing? If it’s the story itself, then no one else has a right to reproduce that story and sell it at a profit (without Rand’s permission). If there are no intellectual property rights, then no one can be said to produce an idea. All he or she can be said to produce are physical objects. But this surely distorts the real meaning of “production.”

Bill: your reasoning above presupposes that anything you produce, no matter what it is, is ownable, and thus owned by the creator.

I would agree with you that if a “story” is ownable property, then it has to be owned by the creator. But I think it is not, and the idea that we obtain property rights primarily from acts of creation is flawed, IMO. We do not create property; we acquire it. We make it more valuable by transforming property we already own. The anti-IP view does not say that ideas used to transform property are “less important” than property. It only says that production is not an independent source of rights in the first place. When you produce, you are transforming property–either yours, or someone else’s. If it’s your already, then your production makes it more valuable to you or to some buyer, but doesn’t give you property rights–you already owned the property that you transformed. If you transform someone else’s property, then presumably the owner of that property owns the newly-transformed item.

***

Trager: “Stephan, you’re clearly an intelligent, articulate guy. But I don’t think you agree with the essential principles of Objectivism, even excluding this issue. The reason is that Objectivism explicitly rejects the idea of anarchism, for reasons given by AR in C:UI as well as by Peikoff in OPAR. You obviously already know that, given your association with the Mises Institute, which despises AR and passes up no opportunity to ridicule her and her philosophical adherents (all while relying on the “non-agression principle” that *she* identified and without actually engaging her more fundamental ideas, of course).”

I was not aware that Rand was the one who identified the NAP.

As I noted above, I agree w/ the 4 main tenets of Objectivism, which do not necessitate a view of anarchy v. minarchy.

Malcom: “Interesting thought there, Bill – it is true the notion of production has been heavily influenced by the Marxist notion of it, even among those who disagree with it… [a bad case of subliminal seduction?]”

Actually, it’s kind of Marxian to focus on the right to get rewarded for your labor…

John:

You’re saying that C should not take on any expectation that A may have put conditions on the reproductive rights to their product when they sold the product to B? Or that C shouldn’t cease production once realizing the information they received was not through honest means?

Of course C shouldn’t stop production. D and E won’t! Look: suppose I email you in the very next message, “Hey, John, do you konw, if you combine aspirin, baking soda, and vinegar, it is the BEST headache pill!” And you try it; and sure enough, it works. So you start selling Aspergar Soda for headache relief, and you become a billionaire.

Then you get a letter from some dude who says he is the inventor of that (and he has copious lab books to prove it) and that he told Kinsella only on the condition that he not tell anyone else.

Now: do you give him your billion bucks? Do you stop taking the pill? Do all the people who have a bottle of it at home have to throw it in the toilet?

What if B stole from A an automobile, and then sold it to C? You are saying A can’t make a claim against C that the property he now has was not obtained through an honest transaction and should be returned to the rightful owner A, and if C wishes can sue B for defrauding him?

But the automobile is property; we all agree to this. Is information? That is the question we disagree on.

Teresa: “Atlas thumpers”–that’s a new one on me! funny.

***

Tibor: “This, from Staphan, seems to be ad hoc: “We do not create property; we acquire it.” It may apply to a tree standing in the wild but does it to a desk that’s made from the tree? Even the former is arguably a result of the act of acquisition, a kind of production since it involves thought and action (brining the thing one finds of value under one’s control). But the latter, the making of a desk or table or house or factory from raw materials one has bought or found in the wilds, surely comes under one’s control, becomes one’s property unless someone else has already acquired it. Auden’s poems, Zola’s or Rand’s novels, Gerschwin’s compositions, etc., etc., do very plausibly come to be the property of their creators, no one else’s unless they are made under consignment.”

Tibor, my comment is meant to dispel the notion that creation itself is an independent source of rights; to show that it is neither necessary nor sufficient. I agree there is a creative aspect to all things we do with property, even in acquiring things like trees. Sure. But you don’t create the tree when you fell it; rather, you are by your action (which may indeed be creative, or considered productive) appropriating something that already exists, to your own ownership. Once you own the tree, you apply further creative effort or labor to it to make it into a nice desk; this is productive, sure; your labor has made the desk more valuable (to you, at least). But you already owned the lumber you used, and this is why you own the lumber still, when it’s in the form of a desk.

The problem with saying that the creator of a poem owns it is that this really means that, by virtue of coming up with a creative, useful pattern or arrangement or recipe, you now have a claim on how others can use their own property. Note, you said:

But … the making of a desk or table or house or factory from raw materials one has bought or found in the wilds, surely comes under one’s control, becomes one’s property unless someone else has already acquired it

. This is exactly the problem I have with IP: the property that IP gives you the right to control–others’ tangible property–is already owned and acquired by them. That’s exactly why I oppose IP: I think its posits a new property ownership rule that undermines and is in conflict with the homesteading rule. I own a drug factory. I can use it in any number of ways. Now, you obtain a patent for combining substance A and B. This gives you a veto-right over how I use my own, already-owned, property; it gives you partial ownership of it. Some rights to control my property transfer from me, to you.

***

Luke: “I still do not see a distinction between “an essential political premise of Objectivism” and an “essential principle of Objectivism,” at least not in the almost universal context of humans living together in significant numbers.”

I grant you that she and other Objectivists think that if you unpack or look closely at point 4, “Capitalism,” that this implies anarchy is bad, and IP rights are good. But as a general matter, Capitalism is meant to refer to a system protecting individual property rights. That is what is essential. Even if Rand thought this, in application, requires IP rights (say), that does not mean this is correct.

JOhn keeps asking me what rights are. I think Rand’s definition is okay, if a bit loose. Another good one is that given by Fr. Sadowsky: “When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use.”

There are other good definitions too. I have one in mind myself, but I think it would take us far afield, and to be honest, I don’t think many people here really want to discuss this seriously and civilly. If you can’t even discuss IP civilly, I don’t think you really want to discuss a different conception of rights.

Whatever may be open to disagreement, there is one act of evil that may not, the act that no man may commit against others and no man may sanction or forgive. So long as men desire to live together, no man may initiate—do you hear me? no man may start—the use of physical force against others.
…
Man’s rights can be violated only by the use of physical force. It is only by means of physical force that one man can deprive another of his life, or enslave him, or rob him, or prevent him from pursuing his own goals, or compel him to act against his own rational judgment.

The precondition of a civilized society is the barring of physical force from social relationships..
…
The concept of a “right” pertains only to action—specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.

NOtice the emphasis here on initiation of force? How does my making a drug with my own property initiate force against some other guy?

Now, I agree w/ her here. I should be free from the physical compulsion/interference of others who use the state to force me not to use my own property, based on the seemingly irrelevant argument that he thought of a similar way to use his own property, before I did.

***

Mark:

Stephan, I read with interest your posts through #30. I stopped there, because I’m out of time, and also because I got pumped up when I came across your approach to justifying rights, by reference to the “presumption of civilized norms” that supposedly inher in any discussion–an argument employed in various forms by Rothbard, Hans Herman Hoppe, and many others who have been influenced by the contemporary Austrian Economics movement. I think that approach fails, although I need to get more clear to make sure my reasoning is sound. (I came to libertarianism through Austrian economics, so I am sympathetic. But I have criticisms.)

I am going to read a lot more about IP, both your articles and Tibor Machan’s writing about this subject. In the meantime, I just want to say that in reading so far (including your brief remark about the source of individual rights), I repeatedly get the sense that you have incorporated what I consider to be erroneous ideas concerning knowlege and morality. I get the impression that you view this subject through a lens of philosophical agnosticism, even as you declare yourself in support of various moral values, such as voluntary association, capitalism, individual preference, and so forth. In other words, my impression is that you think certain values are objective, but that you erode the foundations of objectivity by hewing to what I suspect are flawed prior ideas.

Mark, thanks for your comments. If you are interested in my on derivation of rights, it can be found in several articles collected here, such as “Punishment and Proportionality: The Estoppel Approach”; “Defending Argumentation Ethics”; “A Libertarian Theory of Punishment and Rights”; “New Rationalist Directions in Libertarian Rights Theory”; and “How We Come To Own Ourselves”.

Let me just note the following about your other suppositions. Objectivist ethics is hypothetical: it rests on someone choosing to live, which itself is a pre-moral choice. Even Rand (I think) would not say you can show someone “ought” to choose to live (since the choice to live (“qua man”) is the basis of ethics); only that, if they do, certain things follow. Why do some men choose to live; others to fail or to reject their potential? I don’t know, but the reason is irrelevant. What is significant is that some do; some don’t. You make the choice, or you don’t. I have a similar view: you either choose to be civilized; or you don’t. Why some do, some don’t, is a separate question, perhaps one of sociolgy, or psychology, or maybe even ethics or biology. I don’t know for sure. But if you do choose to be civilized (like the choice to live), it has certain implications for what other norms are going to be compatible with the values and norms inherent in this choice.

Now, since it is hard to find anyone engaged in a discussion like this who will reject cooperation, reason, peace, society, civilization, then those engaged in these questions will alwyas of necessarily all share and favor some basic civilized norms. From these (by standard economic and libertarian reasoning familiar to all of us) one can easily demonstrate that all proposed socialist ethics or norms are contrary to those civilized norms alreayd presupposed as valid (and this proof by contradiction is similar to the way Rand debunked skepiticism and objections to her basic “axioms”).

I want–you want–to live in a world of cooperation and reason and peace and civilization and society, and interpersonal harmony and universal flourishing. That is what we want. Yes. Is it wanted by all? No. Criminals exist, and always will; even if you show them God’s Ultimate Proof, or Rand’s, or what have you, still, they may disregard them. That is the difference between norms, value, and prescription, on the one hand; and facts and descriptive truths, on the other. So here we have a civilized community of civilized people who all adopt basic civilized norms, including peace, harmony, reason… and we challenge each other to prove to the other why we believe what the other already adopts as a value, or truth. Why? It’s like a member of the Chess Club demanding that fellow member prove why Chess is worthy. It make-a no sense.

***

Bill Dwyer:

Stephan asked,

How does my making a drug with my own property initiate force against some other guy?

It doesn’t, if you didn’t steal the idea from him, but if you did steal it — if you got the idea from him and reproduced the drug without his consent — then you have initiated force against him, because you’ve expropriated his intellectual property.

The question is whether there is IP. UsIng “stealing” presupposes there is, so is question-begging. And what do you mean, “got the idea from” him? We “get our ideas” from countless sources and inspirations, learning and acccumulated knowledge. Let’s say I hear that everyone loves this “aspirin” that Bayer is selling. So I think, hmm, I bet I can make aspirin pills too, and make them better than Bayer. Did I “get the idea” from Bayer? Did I “steal” anything? I never read their patent, and never bought anything. I just *learn that* some people find taking this drug made from aspirin to be useful.

Whether an act constitutes theft or a violation of one’s property rights depends on how one defines property. You cannot define property rights by reference to the initiation of force, if you define the initiation of force by reference to property rights. For example, suppose that I am standing on a plot of land, and you physically remove me from it against my will. Have you initiated force against me? That depends on whether or not you own the land. If you own it and ask me to leave, but I refuse, then you have every right to force me off your property. In that case your action constitutes the retaliatory use of force, not the initiation of force. But suppose that I am the owner of the land. In that case, your forcing me to leave would involve the initiation of force, not retaliatory force.

Exactly. This is the very problem with IP: if your “ownership” of a given recipe *means that* you can stop me from using my own land–my own property and body–as I see fit, then it means you really co-own my land and body. But how did you come to co-own my land and body? I already fully owned them.

The same is true of intellectual property. If I create something on my own without stealing it from you, then even though you thought of it first, I still have a right to it, because I produced it on my own. But if I stole the idea from you, then I am violating your property rights.

But this is question-begging, if you are assuming that my duplicating something I learn about, is stealing. Why is it stealing?

As Rand puts it, “An invention has to be embodied in a physical model before it can be patented;

And, again, Ayn Rand doesn’t know what she is talking about. You do NOT have to “reduce the invention to practice” — embody it in a physical model — before it can be patented. She is completely wrong. You can have an idea sitting at your desk, write it up, file it, and boom, you’re done. Filing is called “constructive reduction to practice.”

a story has to be written or printed.

This is true, but so what?

But what the patent or copy right protects is not the physical object as such, but the idea which it embodies.

It protects it *by giving the author/inventor partical ownership rights in other’s already-owned property*. This is the very problem with it.

By forbidding an unauthorized reproduction of the object,

PATENT LAW DOES NOT FORBID REPRODUCTION. It has nothing to do with reproduction. It does not assume that the “thief” as you call it has access to the original idea or invented object. This is copyright law. Laymen who think you can use a copyright-like concept to implement a patent system seem to have no clue as to what they are talking about.

the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent;

Let me make sure I understand you here: are you saying that there is a property right in the value of an object? Is this what you are saying?

Stephan, you don’t deny someone the right to determine the conditions on which he is willing to sell his product, do you? Isn’t that all a patent or copyright does?

Absolutely not. Patent and copyright are NOT based on the idea of contract. If they were, they could not bind third parties.

No one is forced to apply for a patent or copyright; one may give one’s idea away, if one chooses.

Are you sure about this? How do you “give away” the copyright that federal law automatically grants you in something? To give an analogy–you have a right to apply for social security when you retire, and you have a right to sue someone for racial discrmination. Both of these rights are illegitimate, of coures, but you are granted them by the feds. How would you “give them away”? Is there an official bureau of rights-relinquishment that I don’t know about? In fact, as far as I know, it’s not easy to “give away” your copyright–that is, to dedicate something to the public domain. Federal law GIVES YOU a copyright as soon as you fix an original work of authorship in a tangible medium of expression. No registration, filing, or even coypright notice is needed. If you do nothing, you have a copyright. How do you stop this? Don’t put a notice? Don’t register? That doesn’t matter. What if you put a notice, “I renounce my copyright”–? So what? This is ineffective–there is no contract, no consideration.

But if one want’s to establish the condition that it may only be used privately and not for commercial reproduction, then a patent or copyright helps to make that condition public knowledge.

A condition is a condition of a bilateral contract. But patent and copyright bind third parties, even those who had no notice.

I do think Rand is wrong to deny an inventor the right to his invention, just because someone else happened to invent the same thing and to beat him to the patent office by a few minutes. He has a right to it if he produced it, even if someone else did so before he did.

This is a good critique of Rand, but I am not sure if you realize how devastating this little exception would be to the patent system. There is a reason that most pro-patent types would froth at the mouth and fight you tooth and nail for suggesting such a change to the patent system. You would get accused of hating small inventors and innovation, etc.–the same kind of stuff I get from your side.

Suppose you insert into patent law an exception for prior users, or independent inventors. So what’s going to happen? If I had a company I would tell all my engineers to NEVER read the patent database; I would establish a policy to prohibit this. I would spend money (wasted!) to have a verifiable “clean room” procedure for innovations, similar to what is often done now in the copyright/software context (where the coders program in isolation, with no access to other material, so that if the program they produce has some similarities to an existing product, they can prove they didn’t have “access” to it, and did not “reproduce” it–this is a defense in copyright, but not patent, b/c copyright infringement requires some kind of reproduction of another’s work, and thus proof that there was “access” to it). So you would have everyone running around covering their eyes, trying NOT to learn what others have done, out of fear of being unable to prove they independently invented something. All so they could preserve a defense against patent infringement. The patent proponents would hate this measure b/c it would basically gut the patent system (albeit, at a huge deadweight cost of all these companies having to cultivate intentional ignorance and establish clean room procedures). Moreover, the patent system has two main (utilitarian) purposes: the encourage invention disclosure (the filing of a patent application that becomes public), and also to encourage innovation by giving you a limited monopoly on it. If people are trying to AVOID reading the patent database so as to establish the lack-of-access/lack-of-copying defense you propose, then that defeats the primary purpose of the patent system; there is no way in hell this proposal would ever pass, or is in any way compatible with the patent system.

What I am saying is that the idea of an independent inventor defense is contrary to the entire idea of a patent system. So in recognizing the need for this defense, I think you are starting to see how problematic any real-world patent system really is.

***

Mark:

Stephan, Thanks for your carefully thought out response. I am highly interested in argumentation ethics as advocated by contemporary Austrians, partly because grasping the subject is fun, and also because I am curious as to whether or not more than one justification of moral norms is possible. In other words, is the objectivist explanation for the source and nature of personal moral values, upon which is erected the case for ethical norms, the only possible approach to proving objective moral values? Or is the Austrian approach a sort of shorthand logical process that reveals contradictions that inher in any denial of proper moral norms? I actually don’t know. I have thought that the Austrian short cut failed, but I need to really think about this methodically to try to become clear. So I’ll read your articles.

Mark, thanks. While my approach uses some Austrian insights, I am not sure I would say my approach to justifying rights is really part of Austrian economics (Hoppe’s argumentation ethics is more Austrian-ish, but even it is an ethical, not ecnonomic, theory). Be sure to consider Hoppe’s “argumentation ethics” approach too (which is described by me in the articles I linked before). Some of the reasoning inherent in my “estoppel” approach and also in Hoppe’s Arg ethics can be found in insights of well-known thinkers over the centuries — take a look at the ones collected here: Quotes on the Logic of Liberty.

… I think I grasp the abstract ideas from which some of your commentary flows, as for example your comments about the alleged “non-scarcity” of ideas. My thinking about this alleged “non-scarcity” is at odds with yours. I assume your claim that ideas are not scarce reflects the Austrian idea that thoughts reflect the subjective mental value scale of utility maximizing actors. That is, from the viewpoint of praxeology, ideas and thoughts are morally neutral because subjective choice is morally neutral. Thoughts are essentially interchangeable, in the sense that one’s subjective output is as morally insignificant as another’s subjective output; and since thoughts are “fungible” (in that none is morally superior to another, from the standpoint of praxeology), ideas are therefore unlimited in quantity, produced by individuals as easily as breathing in and out. Ideas are therefore “non-scarce”.

No; to me scarcity is simply an economic concept–it basically means rivalrous. An idea is non-rivalrous (non-scarce) because my use of it does not deprive you of your use of it; it is not exhausted. A scarce resource, by contrast, by its nature as scarce good, can’t be used simultaneously by multiple people; my use excludes yours. If I take your banana from you, you no longer have it. If my taking your banana did not deprive you of your banana–if I somehow looked at your banana and conjured up a duplicate in my hands, it woudl not interfere with your having and using your banana. It is theft for me to take it precisely because it is “scarce” (rivalrous). By contrast, if you have a way of planting corn that makes more corn, and I imitate this method in planting my own corn, it doesn’t “take” (or “steal”) your method from you–you can still use your method to plant your corn.

Putting aside the problem of consequences/utility for the moment, the fundamental question, as it appears to me, is whether the existence of rights to intellectual property constitutes violation of legitimate interests, or rights, of other people. If it were not so, there would indeed exist no grounds to oppose them.

For example, so-called “positive” rights to health care or education ultimately come into conflict with so-called “negative” rights of those who will be forced to provide them. The problem of political philosophy is to establish which one of the two constitutes the actual, legitimate, true rights and which, consequently, must be viewed as a mere violation of true rights.

While I would argue that there’s a conflict between “positive” rights of individual A and “negative” rights of individual B, no conflict exists between “negative” rights of A and B.

For example, the fact that I have a right to my physical body and to products of my labor, directly or via voluntary exchange, does not violate or diminish any rights of other people. The principle is nicely stated in the maxim that if the rational self-interest is the basis of social interactions no conflicts of interests are involved. Indeed, enormous gains to all are to be expected if negative rights of individuals are observed consistently.

Applied to the case of IP rights, it follows that if and only if their inherent harmful nature can be established, then and only then their existence may be condemned.

I believe that at the root of present controversy stand two opposing theories of property rights: the “scarcity” based theory of property as developed by Rothbard, Hoppe et al., on the one hand, and Ayn Rand’s, for lack of a better word, “creationist” theory of property rights, on the other.

It appears that the problem of IP rights is a particularly good instance to test each of the two theories because this particular problem highlights the differences so sharply.

The fundamental question is what is the source of rights? Is it mere scarcity of resources and therefore the need to avoid conflicts that supposedly arise from the fact of scarcity, or is the source rather the recognition of the fact that in order to survive and achieve happiness in the context of interpersonal relationships, i.e. society, man needs knowledge that would tell him what is he to do if his goal is to survive and achieve happiness in society.

I believe that Ayn Rand’s derivation of the concept of right is much more in accordance with the facts of reality and man’s requirements to survive and achieve happiness than the alternative is.

In regards to IP, therefore, the first question we need to answer is whether IP rights belong to the broad category of “positive” or to the category “negative” rights, and why.

Any comments?

Well, let me say that in a way I agree–one source of disagreement lies in differences over whether rights come from scarcity, or from “creation” (Rand’s “man’s needs” type of argument).

I’ve tried to show that it’s a mistake to think of creation as a source of ownership of property. Often it’s said that you can find/appropriate something, create it, or buy/receive it from a previous owner. But “creation” is not really a third way of acquiring ownership. In fact, it’s neither necessary nor sufficient. Appropriation of unowned goods, and contractual acquisition of goods from previous owners, are the only ways to acquire property rights in things. I discuss this in detail in the section “Creation vs. Scarcity” et pass. of Against Intellectual Property. Also, note that if you say that we have property rights to “things we create,” you indeed open the door to a horrible pandora’s box of things that people have monopolistic rights to, which would entangle and ensnare all use of scarce resources, thus leading to the entire human race dying out. See, e.g., the examples of Galambos and Schulman, noted in my article, who advocate protection of a very broad range of mentally “created” patterns, ideas, “logos,” what have you.

Tibor Machan has alluded to this in some of his writings, where he basically wants to say that there are all kinds of “things” that “exist”–poems, trucks, etc.–and since “The tangible-intangible distinction is not a good one for what can and cannot be owned”, then we need to focus on “intentionality”–things we intentionally create or produce, whether they be “tangible” or “intangible”–indeed, intangible things like poems, computer games/programs, novels, songs, arrangements, etc. are more completely “intentional” and “created” than are tangible goods. I.e., Machan’s theory seems to be that any “ontological type of thing” that we can identify, and that was intentionally created or produced by man, is owned by man. For more on this, see: New Working Paper: Machan on IP; also see the criticism and discussion in the comments (e.g., those of Carl Johan Petrus Ridenfeldt at November 30, 2006 4:59 PM); see also Owning Thoughts and Labor and related comment thread; and the comments in The Copyright/Baseball Analogy. I think if you review the criticisms of Machan’s view here (and my discussion of “Creation v. Scarcity” in my longer paper noted above), you’ll begin to see the magnitude of problems that accompany looking at property in this way.